Environmental Impact Assessment in UK Law

As the judge said, the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken.

The principle in this and similar cases seems to me to be clear: the Directive does not apply to decisions which involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given. But the procedure was nevertheless a new and freestanding examination of the issues and could therefore, in my opinion, require the information provided by an environmental impact assessment.

The Claimant challenges that decision under section 288 of the Town and Country Planning Act 1990 on the grounds that the First Secretary of State failed to make or to consider making a screening direction pursuant to regulations 6 and 8 of the Town and Country Planning (Environmental Impact Assessment) England and Wales Regulations 1999, SI 293. These give effect to the Environmental Assessment Directive 1985 as amended in 1997.

Although section 288(5)(b), in providing that the court "may" quash an ultra vires planning decision, clearly confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive.

In the present case, both the Inspector and the Secretary of State did consider whether the Park and Ride scheme and the link road were parts of a single scheme and concluded that they were not, and there has been no irrationality challenge to their conclusions in that respect. As was submitted by the interested party to the Inspector, the claimant's submission to the Inspector effectively turned the judgment in the Swale case on its head.

There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations ( Tew was an example of such a case), but they are likely to be few and far between.

I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term "screening opinion".