A reminder of the residual powers of the secretary of state to make a screening direction
The High Court challenge in R (on the application of Save Britain’s Heritage) v Secretary of State (see PP 2013/135) was to the decision of the secretary of state to issue a negative screening opinion for the purposes of the predecessor regulations to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”). The claimant had specifically requested the Secretary of State to take that step. The case, therefore, provides a useful reminder of some of the Secretary of State’s present powers in that respect. Objectors to development proposals likely to generate some environmental impact in particular should be aware of two such powers.
Under regulation 4(8) of the Regulations, the secretary of state may make a screening direction for any particular development of a type listed in Schedule 1 or Schedule 2 to the Regulations either of his own volition, or at the written request of any person. Paragraph 77 of Circular 02/99: Environmental Impact Assessment refers to cases where information provided to the Secretary of State by third parties may suggest the need for an environmental impact assessment.
The High Court challenge in R (on the application of Save Britain’s Heritage) v Secretary of State (see PP 2013/135) was to the decision of the secretary of state to issue a negative screening opinion for the purposes of the predecessor regulations to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”). The claimant had specifically requested the Secretary of State to take that step. The case, therefore, provides a useful reminder of some of the Secretary of State’s present powers in that respect. Objectors to development proposals likely to generate some environmental impact in particular should be aware of two such powers.
Under regulation 4(8) of the Regulations, the secretary of state may make a screening direction for any particular development of a type listed in Schedule 1 or Schedule 2 to the Regulations either of his own volition, or at the written request of any person. Paragraph 77 of Circular 02/99: Environmental Impact Assessment refers to cases where information provided to the Secretary of State by third parties may suggest the need for an environmental impact assessment.
(As with the further power referred to below, this is not a power available to a local planning authority (“LPA”) or an inspector.)
Quite separately, regulation 4(9) of the Regulations gives the secretary of state power to direct that a development of a description mentioned in the first column of the table in Schedule 2 to the Regulations requires the submission of an environmental statement, notwithstanding the fact that or any applicable threshold or criterion in the second column of that table is respectively not exceeded or not met. Again, paragraph 77 of Circular 02/99 refers to the possibility of an LPA exceptionally drawing the secretary of state’s attention to such a development, and requesting him to make a direction. Of course, it would equally be open to any member of the public to do likewise.
In R (on the application of Burridge) v Breckland District Council [2012] EWHC 1102 (Admin) at first instance, the judge pointed out that where an applicant for planning permission sought to abuse the position by splitting a single project into separate planning applications in an attempt to avoid a screening opinion, the predecessor regulation to regulation 4(9) of the Regulations provided an answer for objectors.
John Martin
