Case Law >> 'Development' should include EIA projects

Hayley Tam and Colleen Theron from LexisPSL explain a High Court decision that could mean developers will have to conduct more EIAs

Following a recent court decision, local authorities will be expected to interpret the meaning of “development” broadly, so it also covers projects requiring an environmental impact assessment (EIA). This could have time and cost implications for developers, who may be required to carry out EIA in an increasing number of circumstances.

In Save Woolley Valley [2012] EWHC 2161 (Admin), a conservation group succeeded in overturning a local planning authority’s decision that poultry units, each housing 1,000 laying hens, were not “development” subject to planning control and so did not require an EIA.

The Administrative Court considered that the approach adopted by the authority was too narrow in its definition of development in s.55 of the Town and Country Planning Act 1990.

The court said that the authority should have considered whether a unit was an “erection” or a “structure”, and therefore constituted a building for the purposes of s.55, bearing in mind the substantial size and weight of each unit. According to the court, this would involve carrying out a threefold test considering size, permanence and degree of physical attachment.

The definition of development in s.55 could, and should, be interpreted broadly by planning authorities so as to include, wherever possible, projects that require an EIA under the EIA Directive (85/337/EEC) or the EIA Regulations, said the court, otherwise the Directive would not be effectively implemented under UK law.

Previously, authorities would consider whether the project was development before determining whether the EIA Regulations applied. The ruling means that authorities may now have to consider whether a project falls within Schedule 1 or 2 of the EIA Directive in order to conclude whether it is development under s.55.