Judicial guidance on ascertaining whether a threshold is met in relation to development potentially falling within Schedule 2 to the EIA Regulations
A third issue of practical importance arose in R (on the application of Burridge) v Breckland District Council (see PP 2013/74). The second planning application was for a combined heat and power plant on a site in the vicinity of the site of the first planning application, and for an underground pipeline approximately 1.1 km in length connecting the two sites. The pipeline potentially fell within paragraph 3(b) of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the Regulations”) which refers to “Industrial installations for carrying gas, steam and hot water”. The applicable threshold is where the “area of the works” exceeds 1 hectare. The claimant, in the court below, had also contended – albeit unsuccessfully – that the second planning application, considered independently, exceeded that threshold with the result that a screening opinion should have been adopted.
Judicial guidance on ascertaining whether a threshold is met in relation to development potentially falling within Schedule 2 to the EIA Regulations A third issue of practical importance arose in R (on the application of Burridge) v Breckland District Council (see PP 2013/74). The second planning application was for a combined heat and power plant on a site in the vicinity of the site of the first planning application, and for an underground pipeline approximately 1.1 km in length connecting the two sites. The pipeline potentially fell within paragraph 3(b) of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the Regulations”) which refers to “Industrial installations for carrying gas, steam and hot water”. The applicable threshold is where the “area of the works” exceeds 1 hectare. The claimant, in the court below, had also contended – albeit unsuccessfully – that the second planning application, considered independently, exceeded that threshold with the result that a screening opinion should have been adopted. On the facts, by way of provision for laying the pipeline, the planning application included a strip of land 10 metres wide over the whole of the length of the pipeline. The claimant argued that if the whole of that area were to be taken into account, the 1 hectare threshold would be crossed. The only relevant information contained in the committee report was a statement that “the proposed pipeline corridor has also been widened to provide some flexibility to negotiate unforeseen obstacles”. The pipe itself, however, would have a diameter of only 20 cm. The Court of Appeal acknowledged that Schedule 2 defines “area of the works” to include any area occupied by apparatus, equipment, machinery, materials, plant, spoil heaps or other facilities or stores required for construction or installation. However, the appeal judges rejected the claimant’s argument, holding that the judge at first instance was justified in concluding that the pipeline area of works did not come within paragraph 3(b) of schedule 2. To conclude otherwise “would be productive of wholly unreal technicality”. The judge had properly recognised the red lines on the plan were there to “demarcate room for manoeuvre”. Once the pipe laying works had been completed, those boundaries would become irrelevant. Since 24 August 2011, the Regulations have been replaced in England by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. Paragraph 3(b) of Schedule 2 is unchanged, and likewise the definition of the “area of the works”. John Martin
