The court, on a challenge to a negative screening direction, rejects an argument based upon “salami slicing”

For the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the Regulations”), a “Schedule 2 development” is a development of a description mentioned in the first column of the table in Schedule 2 to the Regulations where any part of that development is to be carried out in a sensitive area, or any applicable threshold or criterion in the second column of that table is respectively exceeded or met in relation to that development. Once a Schedule 2 development has been identified, it will require to be screened to ascertain whether it is likely to have significant effects on the environment. Should that be the case, an environmental impact assessment must be carried out. In the past, these requirements have occasionally led to the practice of “salami slicing”. This refers to the tactic of splitting an initial development project into a number of separate development projects that individually do not exceed the threshold set, or meet the stated criterion, to avoid triggering the need for a screening opinion, or to attract a negative screening opinion on the ground that any environmental effects would not then be significant. Paragraph 46 of Circular 02/99 – Environmental Impact Assessment draws attention to the possibility of this, and the European and domestic courts have held the practice to be unacceptable. The Circular in particular advises that it is important, in such an instance, to establish whether each of the proposed development projects could proceed independently, and whether the aims of the Regulations are being frustrated by the submission of multiple planning applications. In R (on the application of Save Britain’s Heritage) v Secretary of State [2013] EWHC 2268 (Admin); [2013] PLSCS 189 the Secretary of State issued a negative screening opinion in relation to a planning application seeking permission to demolish a Victorian chapel, despite the fact that the need for this was identified in supplementary planning guidance as the first stage of a wider phased housing regeneration scheme for the area. On the facts, the court held that the Secretary of State had not erred in treating the development project, in relation to which he had to make a screening direction, as being the proposal to demolish the chapel, rather than some wider development project. The nature of the relationship between the proposed demolition of the chapel – as part of the landscape strategy – and the remaining stages of the regeneration scheme did not require such an approach. John Martin