Environmental Impact Assessment (EIA) is a process that aims to improve the environmental design of a proposed development and to provide decision-makers with sufficient information about the environmental effects of implementing a project to allow an informed decision to be made. However, practitioners and decision makers should not overlook the fact that EIA is a process and it is much about the steps and procedure of undertaking an EIA as well as determining the significance of potential environmental effects of a project. A Supreme Court decision which resulted in a decision being quashed in December 2017 reinforces this fact. In taking this case all the way to the Supreme Court, one point that was clear was a failure of the Council to carry out its duty under the Town and Country Planning (Environment Impact Assessment) Regulations 2011 (SI 2011/1824) to provide a statement of the main reasons for its decision. Having reviewed a number of Decision Notices over the past 12 months and even following the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 / 571) that came into force last year, it seems that lessons have not been learnt. The absence of such a statement of reasons and necessary notification procedures continues to be an area of potential challenge which could put a permission at risk.
In terms of EIA development, the procedural steps for decision making are set out in the EIA Regulations 2017 under the following:
Regulation 26: Consideration of whether planning permission or subsequent consent should be granted;
Regulation 29: Information to accompany decisions; and
Regulation 30: Duty to inform the public and the Secretary of State of final decisions.
Regulation 26 of the EIA Regulations sets out what is to be considered by the Local Planning Authority (LPA), Inspector or Secretary of State (SoS) when determining whether planning permission should be granted for an EIA development. The regulation states that LPAs must “...reach a reasoned conclusion on the significant effects…[and] integrate that conclusion into the decision”. The regulation goes on to state that planning permission must not be granted unless the LPA are satisfied that the environmental information is up to date.
Regulation 29 sets out the information which is required to accompany decisions for EIA developments. Should the decision be to grant planning permission, the decision should include “the reasoned conclusion of the relevant planning authority…on the significant effects of the development on the environment”. In addition, the LPA should set out any conditions, mitigation and monitoring measures required. In practice the mitigation and monitoring requirements will be suitably addressed by the conditions attached to the Decision Notice.
Regulation 30 details what an LPA is required to issue upon deciding whether to approve or reject an application supported by an EIA. The regulation requires the LPA to inform the SoS and consultation bodies of the decision in writing and the general public by local advertisement, or by such other means as are reasonable in the circumstances. The Regulations state that SoS, consultation bodies and general public should be informed of the decision promptly after it has been made. The definition of “promptly” is not defined in the EIA Regulations nor Planning Practice Guidance. The onus is clearly on the LPA to implement Regulation 30 and notify the relevant bodies.
Although the Town and Country Planning (Development Management Procedure) (England) Order 2015 is clear that where a decision has been made relating to EIA development, a statement be provided confirming that the environmental information has been taken into account by the authority, the EIA Regulations are more specific in their requirements. The need to also address the EIA Regulations is separate requirement but one which is an important procedural step in securing a lawful consent. It is clear that in order to do this, the following steps must be followed;
Integrate a ‘reasoned conclusion’ into the Decision Notice.
Consider whether it is appropriate to impose mitigation or monitoring measures and secure them by condition or by a Section 106 agreement.
Provide a notification of the decision.
It should be noted that the term ‘reasoned conclusion’ is not defined by the Regulations. However, best practice dictates that this conclusion should be based on reasons and evidence and be the product of a balancing exercise between the potential environmental impacts of a development. There are various ways to approach a reasoned conclusion, each of which will need to be case specific and appropriate to the environmental effects at hand. It should also highlight any additional mitigation or monitoring requirements and confirm how these will be secured.
In summary, Regulations 26, 29 and 30 of the 2017 EIA Regulations set out how LPAs must reach a planning decision which concerns EIA development and the information that should be issued once a decision has been reached. Evidence suggests that LPAs are failing to provide all the necessary information which, as demonstrated in recent case law (DDC v CPRE Kent) resulted in a permission being quashed. Working proactively with LPAs can overcome this hurdle or by just providing a helpful friendly reminder when leading up to a decision deadline. EIA Developments are highly litigated and quite simply due cognisance must be given to the correct procedural steps to secure a lawful and unchallengeable consent.
 Dover District Council (Appellant) v CPRE Kent (Respondent) CPRE Kent (Respondent) v China Gateway International Limited (Appellant)