Trium Environmental Consulting has recently published an excellent article entitled “ES reviews: the good the bad and the disproportionate”. The article outlines good practice in relation to ES reviews, which have grown in frequency and scope in recent years – in particular following the publication of the new EIA Regulations in 2017 and the requirement for planning authorities to ensure that they have access to sufficient expertise to examine environmental statements. For the full article, see here.

The importance of proportionality, pragmatism and common sense when preparing or reviewing an ES should not be underestimated or overlooked. For EIA to be a valuable tool to inform the planning process, it is essential that it is selective and focuses on the main environmental effects of the development. National planning practice guidance confirms that:

“Impacts which have little or no significance for the particular development in question will need only very brief treatment to indicate that their possible relevance has been considered.”

The courts have frequently emphasised that the EIA process must be realistic and that environmental statements do not have to assess every conceivable impact that might be caused by development. In a galvanising judgment that responded to the apparent trend towards ever-longer environmental statements and an “unduly legalistic approach” to the requirements of the EIA Regulations, Mr Justice Sullivan (as he then was) in the case of Blewett [2003] EWHC 2775 (Admin) held that:

“It would be no advantage to anyone concerned with the development process – applicants, objectors or local authorities – if environmental statements were drafted on a purely ‘defensive basis’, mentioning every possible scrap of environmental information just in case someone might consider it significant at a later stage. Such documents would be a hindrance, not an aid to sound decision-making by the local planning authority, since they would obscure the principal issues with a welter of detail.”

In the subsequent case of Davies [2008] EWHC 2223 (Admin), Sullivan J said that:

“in an ideal world the applicant’s Environmental Statement would be the last word on the environmental impact of a proposal because it would contain the “full information”. However, the Regulations are not premised upon such a counsel of perfection …”.

Consequently, legal challenges to planning permissions due to a defective ES face a high bar to success and, in recent years at least, very few planning permissions have been quashed as a result of a claim for judicial review based on EIA grounds.

This ought to be borne in mind when carrying out ES reviews and certainly before asking the applicant to submit further information under Regulation 25. The courts have recognised the additional delay and costs that can be caused by Regulation 25 requests. In Pampisford Estates Farms [2010] EWHC 131 (Admin), Mr Justice Coulson said that they have:

“a serious effect on the planning process. All parties to the planning process know that. Thus such requests are not made lightly …”.

Such requests should therefore be limited to matters which are directly relevant to reaching a reasoned conclusion on the significant effects of the proposed development on the environment. They should only be made where the ES is “deficient” in the sense of being manifestly incomplete according to the requirements of the EIA Regulations and should never be used simply to obtain clarification or non-essential information.

When carrying out an ES review, the question should always be asked whether the output of the review is limited to what is necessary to inform the planning authority’s assessment and determination of the relevant planning application. If not, then the review may be straying into the territory that Lord Justice Carnwath cautioned against in Mansfield [2003] EWCA Civ 1408:

“It needs to be borne in mind that the EIA process is intended to be an aid to efficient and inclusive decision-making in special cases, not an obstacle-race.”

Environmental impact assessment when carried out properly is a valuable discipline, which improves the quality of new development; the social value of our towns and cities; and our collective health and wellbeing. A good ES review will always enhance this process. A bad ES review will not only create an “obstacle-race” that hampers the delivery of good development, but also risks bringing the very purpose and objectives of EIA into disrepute.

For further information please contact:

Matthew White
Matthew White
Partner and head of UK planning practice, London
+44 20 7466 2461