The court concludes that a negative screening opinion did not fall foul of the Lebus principle
Where it appears to a local planning authority (“LPA”) that it has received a planning application in respect of a development falling within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”) it must adopt a “screening opinion”, ie a written statement of its opinion as to whether the proposed development is an “EIA development”. In this context, that means a development is likely to have significant effects on the environment by virtue of factors such as its nature size or location. Any EIA development requires the LPA to carry out an environmental impact assessment.
In adopting a screening opinion, it is settled law that a LPA may have regard to mitigating measures, provided that they are sufficiently specific, that they are available and that there is no real doubt about their effectiveness. However, it was held in R (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC Admin 2009; [2002] PLSCS 200, that it was insufficient for a LPA to identify likely effects on the environment but merely state that those effects would be considered at a later stage on the provision of additional information. The very purpose of a screening opinion is to determine whether an environmental impact assessment should be carried out.
Where it appears to a local planning authority (“LPA”) that it has received a planning application in respect of a development falling within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”) it must adopt a “screening opinion”, ie a written statement of its opinion as to whether the proposed development is an “EIA development”. In this context, that means a development is likely to have significant effects on the environment by virtue of factors such as its nature size or location. Any EIA development requires the LPA to carry out an environmental impact assessment.
In adopting a screening opinion, it is settled law that a LPA may have regard to mitigating measures, provided that they are sufficiently specific, that they are available and that there is no real doubt about their effectiveness. However, it was held in R (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC Admin 2009; [2002] PLSCS 200, that it was insufficient for a LPA to identify likely effects on the environment but merely state that those effects would be considered at a later stage on the provision of additional information. The very purpose of a screening opinion is to determine whether an environmental impact assessment should be carried out.
In R (on the application of Plant) v Pembrokeshire County Council [2014] EWHC 1040 (Admin), the claimant applied to quash the grant of planning permission by the LPA for two wind turbines, following the adoption of a negative screening opinion.
One of his specific grounds of challenge was that the LPA’s screening opinion had identified, using a screening checklist, potential environmental impacts, but had failed to consider their significance in terms of the Regulations. The opinion merely stated that these would be considered in a landscape and visual impact assessment (“LVIA”) to be submitted later. Accordingly, the LPA had failed to determine whether the proposed development was likely to have significant effects on the environment.
The court rejected this ground, stating that the checklist was not, of itself, the screening opinion. Furthermore, the planning officer appeared to have made a substantive screening decision. In his statement to the court, he had confirmed that there was sufficient information available to him to screen the proposed development, and that he had concluded that it was unlikely to have significant effects on the environment. Finally, he had explained that the purpose of the LVIA was to assist in the determination of the planning application.
John Martin is a planning law consultant
