Archive for May, 2011

We wrote back in April about the impacts of an EU ruling which effectively includes demolition in the definition of development used to over-arch the EIA statute. Now if that all sounds like gobbledygook to you don’t worry, we’re going to explain… This places significant hurdles in front of the UK’s faltering construction industry, which already wrestles with an abundance of red tape.

…But what is EIA you ask?

It is a Directive which has been placed upon the UK through European Law. It requires a detailed assessment of the effects of appropriate development projects on the environment prior to development consent being granted. Quite importantly, the requirement to undergo an EIA, or an assessment into if an EIA is necessary is not discretionary for certain ‘types’ of development. If you are unsure on this point, please don’t hesitate to get in touch. The team at Prism is here to help!

The resulting document aims to ensure that the decision maker for a project makes a proper judgement in the full knowledge of any likely significant effects on the environment.

The task of undergoing an EIA is extremely procedural with a number of ‘hoops to be jumped through’ in order to satisfy the regulations. The most frequently referred to are Screening and Scoping. Screening is the process of determining if an EIA is necessary for an application and considers Schedule 1, 2 and 3 of the regulations. Scoping follows the screening in determining what needs to be included in the baseline assessment and analysis of the findings.

…and how is that Changing?

Prospective applicants can formally request the Local Planning Authority to undertake a Screening and Scoping opinion. The answers which result from such a request are fundamental and can, ultimately, undermine the work which follows if not completed correctly or to a satisfied standard. This change comes through the increasing threat of objectors mounting Judicial reviews.

On this point, the message is simple – to avoid the chance of Judicial Review quashing otherwise sound planning permissions, you must ensure that the evidence base on which a decision is given is sound, even if this has come from the Planning Authority themselves.

The second change shows its head through significant amount of case law developing on EIA. These developments have prompted Communities and Local Governments to undergo a consolidation of the EIA regulations 1999 along with some ‘tweaks’ to the statute. The consultation (which has now closed) can be found here.

These updated regulations are due late June early July (2011) but within the tweaks are some alarmingly profound changes to the thresholds of developments appearing in Schedule 2, within which Screening must be sought.

The proposed changes include:

  1. When submitting an application change/extend an existing development, the thresholds will be applied to the development as a whole once modified.
  2. Any change to a Schedule 1 development will be subject to its own EIA independently of whether the development is included in Schedule 1, 2 or 3.
  3. If an EIA Screening decision comes back negative (ie. Screening is not required) then the correct justification must be given, just as if the screening was required.
  4. If an application has been awarded outline permission but the EIA covers all the aspects of any matters reserved. It will no longer be necessary to re-consult on that same EIA.
  5. Changes to the threshold levels for wind farms to require EIA for the installation of more than 2 turbines; or where the total height of any turbine (including the rotor blade) exceeds 18 metres in height.
  6. New development categories to be added to Schedule 1 and 2 as required through the recent EIA Directive 2009/31/EC

Planning applications are considered not from the point of view of the applicant but from the point of view of the occupiers of nearby properties and the wider public interest. You need to think about this at each stage of your application from writing, through public consultation to answering questions from planning officers… Here are a couple of examples to better illustrate the point;

  1. An applicant wishes to provide a first floor extension above the garage attached to his house to provide a fourth bedroom as he and his wife have three children. As the children have grown older it is no longer considered practical for two of the children to share a bedroom. This all seems very reasonable but it is not a concern that the local planning authority will pay any attention to. Their concern will be whether the proposed extension would unreasonably impact upon the privacy (through overlooking from windows) and outlook (the extension coming too close to the windows of nearby houses) of the occupiers of nearby houses. They would also consider whether the proposed extension would look incongruous (a flat roofed extension to a pitched roof house, or the extension projecting forwards such that it would look out of place in the street).
  2. An applicant owns a field 1 mile outside of a village where she used to keep her daughters’ two horses. The field includes a small pair of timber stables. The applicant’s daughter has lost interest in horse-riding as she has grown older and the horses were sold. The applicant and her husband have always wanted to live in the countryside and would like to build a two-bedroomed cottage for themselves on the land. The local planning authority’s first concern will be to protect the countryside for its own aesthetic and environmental values; generally resisting proposals for new houses in the countryside outside of villages and towns unless there is an exceptional reason why planning permission should be granted. An exceptional circumstance could be where the house is required to accommodate an essential farm worker. It would not include allowing the owner of a field to build a cottage to enable him to move out into the countryside to live.