In an exceptional case, a failure to comply with the EIA regulations in relation to screening may not invalidate the subsequent grant of planning permission.
The Court of Appeal in R (on the application of Burridge) v Breckland District Council (see PP 2013/74) held unanimously that the local planning authority (“LPA”) should have taken both planning applications – given that they were functionally interdependent and so linked – into account in determining whether the later application was a “Schedule 2 application” for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Nevertheless, the appeal judges ruled by a majority that both planning permissions should be upheld. It is important to look at the relevant reasoning.
In an exceptional case, a failure to comply with the EIA regulations in relation to screening may not invalidate the subsequent grant of planning permission. The Court of Appeal in R (on the application of Burridge) v Breckland District Council (see PP 2013/74) held unanimously that the local planning authority (“LPA”) should have taken both planning applications – given that they were functionally interdependent and so linked – into account in determining whether the later application was a “Schedule 2 application” for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Nevertheless, the appeal judges ruled by a majority that both planning permissions should be upheld. It is important to look at the relevant reasoning. By way of background, when the two elements of the proposed development were combined in the original planning application, the LPA concluded that, while the application was a “Schedule 2 application” in that form, the development was not likely to have significant environmental effects. It had therefore adopted a negative screening opinion. The court below had also accepted the evidence of the LPA’s planning officer that had he produced a screening opinion in respect of the second application, he would have concluded that neither the second application – nor a combination of the two – would have constituted EIA development. Pill LJ, the dissenting judge, stated that in the exercise of its discretion the court could decline to quash the two planning permission, despite the error on the part of the LPA, on the ground that had a further screening opinion been adopted it would have been to the same effect as the earlier opinion. However, he did not consider that the belated statement of the planning officer met the strict requirements of the Regulations and the underlying Directive. The other two judges, however, disagreed with that approach. As a general rule, failure to comply with the screening requirements amounts to a fatal flaw in the process leading to the grant of planning permission so that the resulting permission must be quashed. But it should be possible to allow for exceptional cases where such a failure should not result in the invalidity of the planning permission. The existence of the original screening opinion, coupled with the conclusions of the planning officer at the subsequent stage, when he had addressed the revised proposals, should bring this case within the exceptional category. John Martin
