Environmental impact assessment and cumulation with other development

Schedule 3 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”) sets out the applicable selection criteria for determining whether a Schedule 2 development is likely to have significant effects on the environment. Regulation 4(6) of the Regulations obliges the local planning authority, when adopting a screening opinion, and the Secretary of State, when issuing a screening direction, to take into account such of those selection criteria as are relevant to the development in question. Under the heading “Characteristics of the development” in Schedule 3, the criteria include “cumulation with other development”. In Brown v Carlisle City Council [2010] EWCA Civ 253, the Court of Appeal considered the question whether, in the absence of a functional link between two developments, there could be a cumulative effect in terms of likely significant environmental impact. The appeal judges noted that no authority had been cited to them for the proposition that the connection between two developments had to be an operational or functional one for the environmental effects of one development to be part of the cumulative effects of the other. They went on to hold that such a link was not necessary. The facts of R (on the application of Oldfield) v Secretary of State for Communities and Local Government [2013] EWHC 4269 (Admin) did demonstrate such a link, in that the two developments in question were designed to contribute together to the regeneration of a defined area. Development “A” had been recognised as an EIA development, and had been granted planning permission. Development “B” had not been so recognised, and had also been granted planning permission. The claimant sought to quash planning permission for Development “B” on the principal ground that the Secretary of State, at the screening stage, had failed to consider the cumulative effects of Development “B” when assessed with the effects of Development “A”. The court held, on the facts, that the Secretary of State had taken into account the cumulative effects of the two developments, and was entitled to conclude, as a matter of planning judgment, that the significant environmental effects were likely to be the free-standing consequence of Development “A” and not of Development “A” and Development “B” considered cumulatively. The judge pointed out that, merely because one project was likely to have significant environmental effects, it did not automatically follow that the environmental effects of a separate project with which it was linked were also likely to be significant when they were considered cumulatively. Accordingly, the court rejected the challenge. John Martin