Planning - property update October 2014

30 October 2014

Our real estate experts provide an update on planning issues.

Cumulative impact policies and environmental impact assessment (EIA)

Background

In Commercial Estates Group Ltd v Secretary of State for Communities and Local Government and Charnwood Borough Council, David Wilson Homes and Thurcaston Park Trust Ltd the court considered an application for judicial review of a screening opinion by the Secretary of State that a residential development by the local authority and a rival developer was not "EIA development" within the meaning of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the EIA Regulations).

The local authority identified land suitable for a sustainable urban extension (SUE) and proposed policies in its draft core strategy which would allow 4,500 houses to be developed as part of the project. A developer (C) had applied for planning permission for the whole site. Another developer (D) had applied for permission over part of the site.

Screening opinion & EIA

On a request by D for a screening opinion, the local authority delivered an opinion that the development was not an EIA development. C challenged that decision. By that time the inspector appointed to review the core strategy had intervened and the plans for the SUE were on hold. The inspector noted that the development plan had not been approved; neither had C's proposals. He concluded that the development of the SUE was not reasonably foreseeable in the sense used in the European guidance on screening opinions.

C's case was that the screening opinion was unlawful because it failed to take account of the land allocation, and that the inspector's conclusion that the development of the SUE was not reasonably foreseeable was irrational. C claimed that the SUE development was a material factor which should have warranted more detailed consideration.

It was held that the criteria to be taken into account in determining screening opinions included cumulation with other "existing or approved" projects. That criterion was translated into UK legislation in the EIA Regulations. Cumulative impacts are defined in the European guidance as "impacts that result from incremental changes caused by other past present or reasonably foreseeable actions together with the project".

However, there is no definition of "reasonably foreseeable" in the European guidance and the phrase is not used in the EIA Regulations or domestic guidance. The court held that its context was from a very different jurisdiction and it would be wrong to give the phrase the same meaning as in common law negligence or tort.

The court could only interfere with the Secretary of State's planning judgement if it was Wednesbury unreasonable (so unreasonable that no reasonable Secretary of State could have come to that decision). Clearly C's proposals faced uncertainties, and C had failed to show an arguable case that the Secretary of State had acted unlawfully.

New guidance on green belt protection

The Department for Communities and Local Government has issued guidance to local authorities reminding them of the need to protect the green belt from inappropriate development.

The guidance also stresses:

  • Once green belt boundaries are established, they should only be altered in exceptional circumstances, through the review of the local plan;
  • Housing need does not justify harm done to the green belt by inappropriate development.

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