Protecting the Natural Environment

AuthorWilliam Webster/Robert Weatherley
Chapter 49

Protecting the Natural Environment


49.1 This chapter offers an overview of the planning regime in the case of EIA, the Conservation of Habitats and Species Regulations 2010,1development in green belts, National Parks, AONBs, SSSIs, TPOs and hedgerows, as well as the powers of the LPA to require land to be cleaned up.


49.2 The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (as amended) (2011 Regulations)2deal with the procedures for carrying out EIA for projects which require planning permission.3They apply the 1985 EIA Directive.4

49.3 The aim of EIA is to protect the environment by ensuring that the LPA, when deciding whether to grant planning permission for a project which is likely to have significant effects on the environment, does so in the full knowledge of the likely significant effects and takes this into account in its decision-making. The 2011 Regulations set out a procedure for identifying those projects which should be subject to EIA, and for assessing, consulting and coming to a decision on those projects which are likely to have significant environmental effects. LPAs and developers should carefully consider whether a project should be subject to

1SI 2010/490.

2SI 2011/1824.

3The 2011 Regulations apply (in England only) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 (1985 EIA Directive), as amended by Council Directive 97/11/EC [1997] OJ L73/5, Directive 2003/35/EC of the European Parliament and of the Council [2003] OJ L156/17 and Directive 2009/31/EC of the European Parliament and of the Council [2009] OJ L140/114. The 1985 EIA Directive and its amending Directives were codified in Directive 2011/92/EU of the European Parliament and of the Council [2100] OJ L26/1, and a further Directive (Directive 2014/52/EU of the European Parliament and of the Council [2014] OJ L124/1) must be brought into effect by Member States before 16 May 2017 (an informal consolidated version of the EIA Directive is available at The position in Wales is still governed by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999/293). Reference should be made to PPG, reference 4-001-20150326 to 4-058-20150326.

4Including permitted development. They do not apply to development permitted under other regimes which are subject to separate EIA regulations.

506 Restrictions on the Use of Land

EIA. If required, they should limit the scope of the assessment to those aspects of the environment that are likely to be significantly affected.5

49.4 The EIA process6involves five stages:

(a) screening: whether a project falls within the remit of the 2011 Regulations,
i.e. whether it is likely to have a significant effect on the environment and therefore requires an EIA);
(b) scoping: determining the extent of the issues to be considered in the assessment and reported in the environmental statement; the applicant can ask the LPA for its opinion on what information needs to be included – this is known as a ‘scoping opinion’;

(c) preparing an environmental statement: where it is decided that an EIA is required, the applicant must compile the information reasonably required to assess the likely significant environmental effects of the development; to help the applicant, public authorities must make available any relevant environmental information in their possession;

(d) making the planning application and consultation: the environmental statement (and an applicant may prepare an environmental statement without first seeking a screening or scoping opinion from the LPA) and the application for development to which it relates, must be publicised and the statutory consultees and the public must be given an opportunity to give their views about the proposed development and the environmental statement;

(e) decision-making: the environmental statement, together with any other information which is relevant to the decision, comments and representations made on it, must be taken into account by the LPA and/or by the Secretary of State in deciding whether or not to give consent to the development; the public must be informed of the decision and the reasons for it.7

49.5 Development covered by the 2011 Regulations can be found at Schedules 1–2.8An environmental statement will be required in every case in relation to development within Schedule 1 (which involves major development of the kinds described in this schedule), unless exempted by a direction from the Secretary of State. Schedule 2 development concerns EIA development which qualifies if it is likely to have significant effects on the environment by virtue of factors such as nature, size or location. The descriptions of development and applicable thresholds and criteria for the purposes of Schedule 2 development are contained in the table in Schedule 2.

49.6 It is for the LPA (or Secretary of State in the case of an appeal) to determine whether the project is of a type listed in Schedule 1 or Schedule 2 to the 2011 Regulations. If a proposed development project listed under the development description contained in the first column of Schedule 2 exceeds the

5See PPG, reference 4-002-20140306.

6And the 2011 Regulations now provide for EIA, if required, to be carried out at the reserved matters stage of a planning application.

7See PPG, reference 4-003-20140306.

8Also in the PPG, reference 4-044-20140306.

relevant thresholds or criteria set out in the second column, the proposal needs to be screened by the LPA to determine whether significant effects are likely and hence whether an EIA is required. Projects listed in Schedule 2 which are located in, or partly within, a sensitive area9also need to be screened, even if they are below the thresholds or do not meet the criteria. Projects which are described in the first column of Schedule 2 but which do not exceed the relevant thresholds, or meet the criteria in the second column of the schedule, or are not at least partly in a sensitive area may not be Schedule 2 development and do not usually require further screening or EIA.

49.7 When screening Schedule 2 projects, the LPA must take account of the selection criteria in Schedule 3. Not all of the criteria will be relevant in every case and each case should be considered on its own merits in a balanced way, and LPAs should retain the evidence to justify their decision. The guidance suggests that only a very small proportion of Schedule 2 development will require an EIA. To aid LPAs to determine whether a project is likely to have a significant environmental effects, a set of indicative thresholds and criteria have been produced which can found in the PPG in the section ‘Environmental Impact Assessment’.10Having completed the screening exercise, the LPA must provide a screening opinion, indicating either that an EIA is required (known as a ‘positive screening opinion’) or is not required (known as a ‘negative screening opinion’). The Secretary of State can also use powers to direct that EIA is required in circumstances in which development of the type listed in Schedule 2 does not meet the criteria or exceed the thresholds, but is considered likely to have significant environmental effects. Guidance is available: (a) on the procedure for obtaining a screening opinion from the LPA; (b) of challenges or (exceptionally) of changes being made to that opinion; (c) the extent to which mitigation

9Sensitive area information can be found in the PPG, reference 4-032-20140406.

10See PPG, reference 4-057-20140306 and 4-058-20150326. The criteria in column 2 represent the ‘exclusion thresholds’ in Sch 2, below which EIA does not need to be considered (subject to the proposal not being in a sensitive area)..The figures in column 3 are indicative only and are intended to help determine whether significant effects are likely. When considering the thresholds, it is important to also consider the location of the proposed development. In general, the more environmentally sensitive the location, the lower the threshold will be at which significant effects are likely. It follows, therefore, that the thresholds in the spreadsheet at PPG, reference 4-058-20150326 should only be used in conjunction with the general guidance on determining whether EIA is required and, in particular, the guidance on environmentally sensitive areas. Column 4 illustrates the issues that are most likely to need to be considered for different development types. However, there will be other issues which will be specific to the nature of the environmental receptor. For example, ecological impacts are likely to be an issue for all development which is proposed to be located in an SSSI designated for its wildlife value. The guidance at PPG, reference 4-018-20140306 also indicates that it should not always be presumed that developments above the indicative thresholds should always be subject to 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 (see PPG, reference 4-032-20140306): ‘Each development will need to be considered on its merits’. As at 6 April 2015 new Regulations came into force (the Town and Country Planning (Environmental Impact Assessment) (Amendment) Regulations 2015 (SI 2015/660)), which raised the screening thresholds for industrial estate development and urban development projects as set out in the Annex at PPG, reference 4-058-20150326. Projects which are wholly outside sensitive areas and do not...

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