Planning Permission for any large-scale development can be challenged if it is granted on the basis of no/inadequate Environmental Impact Assessment (“EIA”). This means that you need to ensure that the EIA is carried out carefully and correctly, including an assessment of the cumulative effects of the proposal.
Regulations set out a procedure for identifying those projects which should be subject to an EIA, and for assessing, consulting and coming to a decision on those projects which are likely to have significant environmental effects. The findings of the EIA will be set out in the Environmental Statement (“ES”) to accompany the Planning Application and must be scrutinised by way of a Legal Review.
Our advice is to err on the side of caution. Where an EIA is required and cumulative effects scoped in, ensure that every subject matter covered by the ES is addressed from a cumulative perspective (even if only briefly). If cumulative effects are grappled with, a court is unlikely to entertain a challenge to the level of scrutiny of that assessment, provided that the mandatory minimum information is included. It is also important to keep an eye out for changing scenery if the application takes a long time to be determined.
Always consider the ‘main’ or ‘significant’ environmental effects to which a development is likely to give rise. In a nutshell, you need to ask whether the effect is one that ought to be considered and to have an influence on the development consent decision.
And finally, where a proposed development does exceed the thresholds specified within the EIA Regulations, it should not be presumed that developments above the indicative thresholds must always be subject to an EIA, or that those falling below these thresholds could never give rise to significant effects, especially where the development is in an environmentally sensitive location. Each development needs to be considered on its merits.
Article Written by Bernadette Hillman