When do neighbouring EIA developments constitute a single project?

Linked broken branchesIn Larkfleet v South Kesteven District Council, [2015] All ER (D) 51 (Aug), the Court of Appeal dismissed an appeal relating to a grant of planning permission for the construction of a link road.

Although the road and housing development were linked, the two projects were "separate" for Environmental Impact Assessment (EIA) purposes.

 

Background

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.

Key Issue

Whether, for EIA purposes, two neighbouring and otherwise interrelated developments amounted to one single project or two separate projects.

Held

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.

Reasoning

The court considered the principle, established in Ecologistas en Accion-CODA v Ayuntamiento de Madrid: C-142/07 [2008] 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.

Comment and analysis

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.

 

Filed Under: Planning

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