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.

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.

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.

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.

They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting "environmental information" provides the local planning authority with as full a picture as possible.

There is no basis for this distinction, which is both unrealistic and unsupported by any authority. The distinction is unrealistic because elements of many major development projects, particularly the kind of projects within Annex I to the EIA Directive, will still be subject to design changes, and applying Mr. Wolfe's approach those projects will not have "already been designed" at the time when an environmental impact has to be carried out.

It is not appropriate for a person charged with making a screening opinion to start from the premise that although there may be significant impacts, these can be reduced to insignificance as a result of the implementation of conditions of various kinds. The appropriate course in such a case is to require an environmental statement setting out the significant impacts and the measures which it is said will reduce their significance.