In determining whether a planning application falls within Schedule 2 to the EIA Regulations it may be necessary to have regard also to any separate related application.
In R (on the application of Burridge) v Breckland District Council [2013] EWCA Civ 228; [2013] PLSCS 76, the Court of Appeal was required to construe the (then still in force in relation to England) Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. This was in the context of two functionally interlinked developments in respect of which separate planning applications had been successfully made.
In determining whether a planning application falls within Schedule 2 to the EIA Regulations it may be necessary to have regard also to any separate related application. In R (on the application of Burridge) v Breckland District Council [2013] EWCA Civ 228; [2013] PLSCS 76, the Court of Appeal was required to construe the (then still in force in relation to England) Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. This was in the context of two functionally interlinked developments in respect of which separate planning applications had been successfully made. The developer had originally applied for planning permission for an anaerobic digester producing biogas and a combined heat and power plant converting that biogas into heat and electricity on the same site. The local planning authority (“LPA”) viewed the application as a “Schedule 2 application”, i.e. it was for development falling within one of the descriptions set out in Schedule 2 to the Regulations, and the relevant threshold was exceeded or criteria were met. However, it issued a negative screening opinion, having concluded that the development was not likely to have significant effects on the environment. Accordingly, it was not an “EIA development” requiring the submission of an environmental statement. The developer later amended the original application, by removing the combined heat and power plant (“the CHP”) from it and replacing the CHP with some small items of plant. It then applied separately for planning permission for the CHP on a nearby site, and for an underground pipeline approximately 1.1 km in length connecting the two sites. No further screening opinion was issued, and the LPA granted planning permission in each case. The claimant, a local resident, sought judicial review of the LPA’s decisions. Her principal ground was that the LPA had breached Regulation 7(1) of the Regulations. It had failed, in considering whether the separate application was a “Schedule 2 application”, to take into account the possible cumulative effects with the original application. The court below rejected this argument, holding that the question whether a development falls within Schedule 2 must be decided strictly in relation to the development the subject of the planning application. The claimant appealed. The Court of Appeal held unanimously that the two applications, which were linked in that they were functionally interdependent, comprised a single project and a single development. Treated as a whole that development crossed the relevant Schedule 2 threshold. It was necessary to take both into account together at that stage. This was in accordance with Regulation 7(1). John Martin
