As the planning world turns its attention to the upcoming election and wonders what the future holds post 7 May 2015, it would be wise not to overlook the significance of today: 6 April. Two notable changes to environmental and planning law came into force this morning and they will be likely significantly to impact large development proposals across the country. They may, in turn, become the subject of litigation in the future. I discuss each below.
In the environmental sphere, an amendment to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (‘EIA Regulations’) has come into force which raises the threshold for EIA screening.1
The amendments have been brought in to raise the thresholds beyond which certain categories of development project will require screening in order to determine whether an environmental statement will be necessary under the EIA Regulations and pursuant to Directive 2011/92/EU.
The relevant threshold changes are as follows:
The new thresholds have been brought into force following the Government’s ‘Technical Consultation on Planning’ (July 2014). The Government’s response to that consultation makes clear that in their view these changes will lead to the cutting of ‘unnecessary bureaucracy’ and that in their view ‘developments which will fall below the [proposed] thresholds will not be likely to have significant effects either alone or in combination with other projects because of their nature, location or impact.’2
Note that there is no change to development in sensitive areas where thresholds do not apply for example in: National Parks, Areas of Outstanding Natural Beauty, Special Areas of Conservation, etc. Further, the Secretary of State can issue a screening direction for any project irrespective of whether it falls above or below the screening threshold. This includes in response to a third party request.
Note also that these changes are not the result of any change to the Directive. A new EIA Directive was adopted by the EU in May 2014 and the UK government has until May 2017 to transpose its provisions into domestic law.
Although these changes may be welcome to developers for whom the screening process has sometimes seemed an unnecessary burden, given that the changes represent a ten-fold increase to the relevant threshold their legality may well form the subject matter of a future High Court challenge. As such, given that the case law dictates that a precautionary approach must be taken when applying the EIA Directive3, developers may wish to consider requesting a screening opinion from the Secretary of State regardless of whether a proposed development falls under the newly raised thresholds or not. The presence of specific site characteristics, for example proximity to an environmentally sensitive area or cumulation with other similar developments may well render such a request prudent.
For Local Planning Authorities without a CIL schedule in place, and for those who are applying for development/appealing adverse committee decisions in those authority areas, today arrives with some foreboding.
On 24 February 2014 the Community Infrastructure Levy (Amendment) Regulations 2014/365 came into force. They amended Regulation 123 the Community Infrastructure Levy Regulations 2010 the relevant parts of which states:
‘(1) This regulation applies where a relevant determination is made which results in planning permission being granted for development.
(3) Other than through requiring a highway agreement to be entered into, a planning obligation may not constitute a reason for granting planning permission to the extent that –
(a) obligation A provides for the funding or provision of an infrastructure project or provides for the funding or provision of a type of infrastructure; and
(b) five or more separate planning obligations that –
(i) relate to planning permissions granted for development within the area of the charging authority and
(ii) which provide for the funding or provision of that project or provide for the funding or provision of that type of infrastructure,
have been entered into on or after 6th April 2010’ (my emphasis)
A ‘relevant determination’ for the purposes of paragraph (3) is defined at paragraph (4) as being ‘a determination made on or after 6th April 2015 or the date when the charging authority’s first charging schedule takes effect, whichever is earlier’.
The roots of this long-stop date (which has continually been put back) are found in the Government’s intention to ensure that the vast majority of planning contributions are paid through the simplified CIL system rather than through individual s106 agreements. It is no longer possible for a planning obligation to be taken into account as a reason for granting planning permission if the obligation provides for the funding or provision of a type of infrastructure and five or more separate planning obligations entered into on or after 6 April 2010 provide for that funding or for that type of infrastructure.
In July 2014 Savills were reporting that the majority of LPAs would fail to have a charging schedule in place before today4. It is therefore expected that Regulation 123 will prove to be a difficult barrier to the provision of infrastructure in those authorities who continue to be without a CIL schedule.
Developers and local authorities alike would of course be wise to take advice in relation to individual planning obligations which are required to mitigate the impact of any proposed development. For those who have not yet submitted a planning application in a local authority area which does not currently have a CIL schedule in place, it may be worth considering whether elements often contained within a s106 could instead form part of the development’s description. For example: if a proposed housing development is large enough to require an entire primary school to mitigate its impact then it may be possible to provide this on site and to include it in the development’s description. This may enable a developer to bypass the Regulation 123 problem.
This article was written by Victoria Hutton, who is rated as one of the top ten planning barristers under 35 (Planning Magazine, 2015). She acts in a wide range of planning and environmental law matters and is happy to accept instructions from developers, local authorities or other interested parties. You can read Victoria’s profile here.
1 By virtue of the Town and Country Planning (Environmental Impact Assessment)(Amendment) Regulations 2015
2 DCLG, ‘Government response to technical consultation on environmental impact assessment thresholds’ (January 2015) Para 26
3 R(oao Loader) v Secretary of State for Communities and Local Government 
4 Savills, CIL, The Countdown to April 2015, July 2014