Slurry, screening and salami slicing

Stephen Tromans highlights two cases that demonstrate environmental impact assessment continues to be a fertile source of legal development

Development requiring an environmental impact assessment (EIA) is generally one that falls into either Schedule 1 or Schedule 2 of the EIA Regulations. The secretary of state for communities and local government has power, however, to subject an application for planning permission to EIA screening even where it falls outside the criteria set by the schedules.

Increasingly, objectors to developments, including rival developers, are seeking to challenge a refusal by the secretary to exercise that power. R (Threadneedle) v Southwark LBC [2012] EWHC 855 (Admin) was one such case. The result was a judgment emphasising the discretionary nature of the secretary’s power.

The case focused on student accommodation in Southwark, which was well below the threshold for an urban development project under Schedule 2. The local planning authority (Southwark Council) maintained that the development was not EIA development. The claimants had an interest in a nearby site and argued that the development would, cumulatively with other consented or proposed development in the area, have impacts on daylight, historic London monuments and key views across the capital.

Although the claimants wrote to the secretary urging him to call the planning application in for consideration, he declined to do so, and the council proceeded to grant planning permission.

The key question for the High Court was whether the secretary erred in law by not even considering whether to exercise his discretion. Justice Lindblom noted that the power to deem a project an EIA development even though it is not, is one reserved solely for the secretary of state, and in that sense is plainly a power to make an exception to the normal operation of the statutory regime under the EIA Regulations.

Lindblom identified four features of the power worth noting:

• it is unlike other powers in the EIA Regulations in that there is no prescribed procedure for it;
• it may be used only by the secretary of state;
• a decision not to exercise the power will not amount to a breach either of the EIA Directive (85/337/EEC (as amended)) or the EIA Regulations; and
• there is no general obligation on the secretary to consider making a direction.

The Threadneedle case should be read alongside R (Burridge) v Breckland DC [2012] EWHC 1102 (Admin), where the High Court heard further interesting argument concerning cumulative development.

The development in question combined an anaerobic digester, which would produce biogas from a mixture of slurry, chicken litter and maize, and a combined heat and power plant (CHP) that would generate energy from the biogas. Both facilities were on a single site.

The application was clearly Schedule 2 development and Breckland District Council in Norfolk subjected it to screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, which were in force at the time – the result was a negative opinion.

In response to objections regarding the CHP plant, the developer moved it to an existing industrial site more than 1km away, proposing to connect it to the main anaerobic digestion (AD) site by a pipeline. It made a separate planning application for the CHP plant. The council decided no further screening opinion was required for the main site, despite the removal of the CHP plant. A judicial review was sought on the basis that what had happened amounted to “salami-slicing” of a project in an effort to frustrate the aims of the EIA Directive.

Judge Waksman dismissed the challenge, noting that the CHP plant alone was not EIA development and that the EIA Regulations did not oblige the council to consider that application together with the application for the main AD site for screening purposes.

The judge acknowledged that had the original application been for an AD site with a CHP plant elsewhere, as was eventually the position, the council would have been open to take the CHP plant into consideration when screening the AD site’s application. However, as there had been no material change in the original application by removal of the CHP plant there was no obligation on the council to screen again.

The underlying merits of the claimant’s case were relatively weak, in that when the AD and CHP plant were one development at a single site they had been the subject of a negative screening opinion, and the CHP plant had been moved to a location where it was less likely to give rise to environmental effects.