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A competing developer, Larkfleet Ltd, sought to quash planning permission for a relief road to the south of Grantham that, as well as alleviating traffic impact, had the advantage of assisting the development of residential land, allocated in the local
plan. Larkfleet argued that the relief road and the residential development were so interconnected that they were one project and should have been assessed together for the purposes of compliance with the Environmental Impact Assessment Directive
2011/92/EU (EIA Directive). Because they were not dealt with together as one project, the application for the relief road failed to adequately assess the environmental impact of the combined development.
Whether, for EIA purposes, two neighbouring and otherwise interrelated developments amounted to one single project or two separate projects.
The Court of Appeal upheld the High Court’s dismissal of the claim for judicial review of the planning permission. It confirmed that the decision to assess what amounted to a project for EIA purposes was for the planning authority to make. It agreed
that the two developments, while connected, were sufficiently independent that they were not one project.
The court considered the principle, established in Ecologistas en Accion-CODA v Ayuntamiento de Madrid: C-142/07  All ER (D) 328 (Jul) that, what is in substance and reality a single project, cannot be salami-sliced into a series of smaller
projects, each falling below the threshold criteria that EIA scrutiny is required.
The court rejected the appellant’s argument that this principle meant that two developments interrelated to each other, could not be assessed separately, on the basis that it was clear from the terms of the EIA Directive that just because two sets
of proposed works may have a cumulative effect on the environment, this does not make them a single project for the purposes of the Directive. Instead the EIA Directive contemplates that where there are two interrelated projects, cumulative effects
will need to be assessed for each project. In this case the relief road was subject to EIA and had considered the impact of the residential development as far as it could.
The court also noted that as these proposals were present in the local plan policy, that they would have been further underwritten by the fact that alternatives will have been assessed at the strategic level through scrutiny under the Strategic Environmental
Assessment Directive 2001/42/EC.
An important feature of the case was found to be that there was a strong planning imperative for the construction of the link road as part of a bypass, which had nothing to do with the development of the residential site. Although it was clear from evidence
that the residential site could not be granted planning permission unless the link road was constructed, the converse was not true, ie there was a strong independent planning need for the construction of the link road (to complete the bypass), whether
or not the residential site was developed.
This case does not substantively change the current legal position concerning the application of the EIA Directive where two or more EIA threshold projects are neighbouring each other. However, it does demonstrate that the EIA Directive remains open to
review and its interpretation is often steered by the specific facts of the case.
While not advancing the law on the interpretation of the EIA Directive, the case will be of interest to developers proposing to carry out an EIA development which neighbours other proposed EIA developments. A similar circumstance may exist where local
planning policy has identified a piece of infrastructure work which is needed to unlock commercial or residential development, such as a major road or rail connection.
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Jen is a solicitor specialising in planning law. She has experience in relation to a range of planning topics, including environmental impact assessment, section 106 agreements, highways orders, compulsory purchase, freedom of information issues, inquiries, judicial review, the Localism Act 2011, the National Planning Policy Framework and major infrastructure projects. After qualifying at Ashurst, Jen worked at Bevan Brittan and subsequently at CMS Cameron McKenna as an associate in the planning team. She worked as an external author for LexisPSL before joining the team in November 2010. She has written for a variety of legal publications, including the New Law Journal, Utilities Week, Planning Resource and The Lawyer. Jen regularly appears on Talking Law videocasts providing legal updates on planning law.
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