QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF KAREN LAMBERT||(CLAIMANT)|
|LONDON BOROUGH OF SOUTHWARK||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR EIAN CAWS AND MISS G WARD (instructed by Assistant Borough Solicitors, London Borough of Southwark, London SE17 2ES) appeared on behalf of the DEFENDANT
Crown Copyright ©
"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
Section 70 of the 1990 Act provides:
"(1) Where an application is made to a local planning authority for planning permission -
(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or
(b) they may refuse planning permission.
(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."
"(1) The Secretary of State may by regulations make provision about the consideration to be given, before planning permission for development of any class specified in the regulations is granted, to the likely environmental effects of the proposed development.
(2) The Regulations -
(a) may make the same provision as, or provision similar or corresponding to, any provision made, for the purposes of any Community obligation of the United Kingdom about the assessment of the likely effects of development on the environment, under section 2(2) of the European Communities Act 1972; and
(b) may make different provision for different classes of development."
"Having considered the report, the Mayor has concluded that he [is] minded to direct refusal of the application, as it results in an unacceptable loss of open space and leads to an open space deficiency for local residents and in this part of London, which in strategic planning policy terms is a major concern. However, the Mayor recognises the education and regeneration benefits of the scheme, and hence, may reconsider his position, if the application was substantially amended in a way that offsets the net loss of open space caused by the development with other environmental improvements to the park and area, and provides public access to the recreation facilities provided by the school, in line with recommendations in the attached report. The examination of an alternative site analysis would also be fundamental to the acceptability of any revised scheme.
If Southwark Council decides in due course that it is minded to approve the application it should allow the Mayor fourteen days to decide whether or not to direct the Council to refuse planning permission (under article 4(1)(b)(i) of the Town & Country Planning (Mayor of London) Order 2000. You should therefore send me a copy of any officer's report on this case to your planning committee (or its equivalent), together with a statement of the permission your authority proposes to grant and of any conditions the authority proposes to impose, and a copy of any representations made in respect of the application (article 4(1)(a) of the Order)."
"4.1.1. The main consideration in this case is whether
the need for a new City Academy School for 1200 pupils aged 11 to 19 years outweighs the need for a public park and nature area in this locality. Other considerations include whether the City Academy proposal can offset any adverse impact that loss of the park and nature area may have for the local community and whether there will be any benefits arising from the proposal or other adverse impacts on the locality from the proposed development.
4.4.1. This application is for the redevelopment of the
Paterson Park and wildlife garden on the east side of St James's Road as a City Academy (secondary school) for up to 1,200 pupils in the ages 11 to 19 years. It is therefore a straight conflict between two uses of the site that are of benefit to the local community and the borough as a whole.
4.4.4 The application has the full support of Southwark
Council as an Education Authority. Jointly the Corporation of London and Southwark Council considered a number of potential sites and concluded that only this site was suitable. No other site is capable of providing the space for a school and sports facilities on site. Even this site cannot fully meet the outdoor sports needs for a school of this size. It is proposed to make use of the athletics facilities at Southwark Park in addition to those to be provided on this site.
4.4.17. Local open spaces are a valuable resource for
residents' sport, leisure and recreational needs. In addition the open environment plays a role in health and education, supporting ecology and is an important social and cultural resource. In Inner London the shortage of such open space is acute and often subject to development pressures. Planning policies have consistently sought to protect these open spaces from development. However, in some cases the actual local needs may be better served by different types of open space, such as hard open spaces, sitting out area and built recreational or sports facilities.
Local, regional and national planning policy objections
4.4.21 Like the UDP, the regional and national planning
policies and advice have been consistent in opposing any loss of open space and playing fields. However, similarly, there is a conflict between the planning policies for open space and other regional and national policies that promote education and greater use of land in urban areas. As a departure from the UDP, this application has been referred to the Government Office for London (GOL). Should the Council be minded to approve the application, GOL will require 21 days in order to decide whether or not to call-in the application for a decision by the Secretary of State. If it is, the application will be determined following a Public Inquiry.
4.4.22. The Greater London Authority (GLA) has advised
that the Mayor is minded to direct refusal of the application, as it results in an unacceptable loss of open space and leads to an open space deficiency for local residents in this part of London, which in strategic policy terms is a major concern. However, the Mayor recognises the education and regeneration benefits of the scheme and may reconsider his position if the application is substantially amended in a way that off-sets the loss of open space and provides for public access to the recreation facilities of the school. Should the Council be minded to approve the application the Mayor will require 14 days in order to decide whether or not to direct refusal. If the Mayor directs refusal, the applicants would then be able to submit an appeal against the decision.
The balance between the competing uses of the land
4.4.25. Making a decision between those two valuable and
apparently exclusive land uses is complicated. Sticking solely to the policies of the Unitary Development Plan would suggest a refusal of permission. However, when taking the wider public interest into account, or the Corporate policy objectives of the Council, a different conclusion may reasonably be arrived at.
4.4.26. The potential conflict between these two uses of
the land can be alleviated to a large extent by the dual use of the site proposed. It is proposed to develop a partnership between the school and community to ensure that a broad and balanced range of learning, sports and recreational activities are available to meet the needs, interests and aspirations of the community. Use by the community will include the following:
Use of specialist facilities by other schools;
Adult education, including joint learning/family sessions or evening classes;
Use of facilities for sports, music, drama, lectures and other presentations;
Information Craft Technology learning centre for community use after school hours;
Parents Room facilities; and
Career and Educational Guidance Centre.
4.4.27. Subject to the final design, it is proposed to
make the following physical education/sports facilities at the Academy available for school and community use:
A sports hall and a smaller multi-purpose hall;
A fitness studio;
A drama studio;
An all-weather sports pitch; and
A hard-court multi-games area (eg for 6 tennis courts)
These will be new sports and recreation facilities not readily available to the local community at present.
4.4.30. Although the local community will be deprived of
their local open space in its present form, the replacement multi-use open sports pitches and the landscaped areas could be considered to be a more intensive form of open space provision. Together with the indoor sports and community provision on offer, the recreation provision on this site for the community will be different rather than lost by this development. Discussions have also taken place with the Allotment holders with a view to their relocation, possibly to the east of St James's Road.
4.4.31 There is clearly a strong case both for retention
of the park and wildlife garden and for the development of the site for a City Academy which would have education and regeneration benefits for this deprived area of the borough. There is a very close balance between these uses for the land.
4.4.32. However, it is considered that the education and
regeneration benefits, together with wider community use of the facilities, provides such a sufficiently exceptional case that it would outweigh the loss of open space in this instance.
4.4.33. In coming to a recommendation on this
application particular regard was made to the planning policies and designations set out in the Unitary Development Plan. However, an exceptional case was felt to have been made to justify a departure from normally accepted planning policy. In addition to the planning policies of the UDP, the Development Control Committee is able to take into account the wider public interests and corporate strategies of the Council. This may give added strength to their decision to either grant or refuse permission in this finely balanced case."
"That, subject to the Secretary of State for Transport, Local Government and the Regions deciding not to call the application in for his own determination and the London Mayor not directing the Council to refuse planning permission, the Council will grant planning permission with a legal agreement dealing with highway works, a Green Travel Plan, community use of facilities and educational use of the site."
"I understand that Southwark Council and the Corporation of London have now agreed to amend the proposal to provide a larger parkland area of 0.4ha at the western end of the proposed academy. In addition, Southwark Council have agreed to develop two other nearby pieces of land as public open space, neither of which are presently designated as open space, by June/July 2003. These three areas represent a 1ha contribution to public open space within the area to offset the loss of Paterson Park. This is a considerable gain in open space terms compared to the previous 0.1ha parkland area that was to be provided at the western end of the proposed academy. My officers are keen to work with your Parks Department to ensure that the open spaces are developed to a high standard. I believe steps are already underway for collaborative working between the GLA and your Parks Department in the development of outline proposals for the open spaces.
I want to be sure that the three areas proposed are secured as high quality public open spaces in the long term, and not left to deteriorate as has been the case as with some parts of Paterson Park and the adjacent wildlife area. I therefore seek a commitment from your Council to designate these areas as public open space, or land allocated for development as public open space, within the forthcoming first deposit review of your Unitary Development Plan. Small pockets of green land provide valuable breaks and recreation opportunities within densely developed Inner London locations and are worthy of protection irrespective of their size. I would also like to see a financial contribution secured from the Corporation of London, as part of the legal agreement for the academy, towards the ongoing upkeep of the three open spaces. Again, I believe this is necessary to ensure that the open spaces are maintained to a high standard and not left to deteriorate and hence fall susceptible to development pressures.
I have taken into account the increased contribution to public open space within the area from that originally proposed, and the commitment that this open space will be developed and maintained to a high standard, compared to the poor condition of much of Paterson Park and the adjacent wildlife area. I acknowledge the education and community benefits of the proposal. Therefore, whilst contrary to established policies and by emerging strategies to protect open spaces from development in London, I am prepared to consider the amended proposals as a very exceptional case, as they allow for the much need[ed] educational facility, but also provide a degree of compensatory public open space to offset the loss of Paterson Park. I am therefore pleased to advise that I am minded to withdraw my direction to refuse. However, prior to doing so, I require you to consider the following matters, as previously outlined in this letter:
(1) The legal agreement or unilateral undertaking for the academy should include a requirement to produce feasibility studies and outline proposals for the new open spaces by June 2002.
(2) The legal agreement should include a requirement for contributions from the Corporation of London towards the ongoing upkeep of the compensatory open spaces provided.
(3) The legal agreement should include requirement to provide as full as possible public access to the academy's indoor and outdoor facilities as has been indicated within the supporting information for the application.
(4) The Leader of Southwark Council should provide a further written commitment that the Council will seek to designate the compensatory sites as open space or land allocated for development as open space, and a written commitment that the Council will seek to develop and designate other small pockets of land within the area as open space. The car park area identified by Simon Hughes appears to be worth further examination as an opportunity for the development of additional open space."
"My letter of 21 March gave you the undertakings that you required on the first and fourth points that you raised, ie that we would produce studies on the additional open spaces and bring forward proposals by June 2002, and that we would seek to develop additional open spaces where possible.
Following discussions with the Corporation of London I can confirm their agreement to the other two points you raised.
They will contribute to the ongoing upkeep of the compensatory open spaces by taking full responsibility for both the laying out and the maintenance of the open space remaining on Paterson Park itself. This will enable us to focus our support on the other spaces.
They reconfirm the commitments that have been given previously on the community use of the indoor and outdoor facilities.
Both these aspects will be included in the legal agreements we will draw up once we are able to proceed with the next stages."
"3.1 The Corporation shall arrange for community use of the facilities upon the Site in accordance with the proposals set out in Sections 2 and 3 of the Supplementary Supporting Statement to the Planning Application dated December 2001 or such other proposals which shall be agreed in writing by the Council (such agreement not to be unreasonably withheld or delayed).
3.2. The Corporation shall lay-out maintain and manage the Amenity Open Space in accordance with a specification which shall be agreed in writing by the Council (such agreement not to be unreasonably withheld or delayed).
3.3 The Amenity Open Space shall be open for public access every day of the year during normal opening hours of parks within the London Borough of Southwark or during such hours as may be agreed in writing by the Council (such agreement not to be unreasonably withheld or delayed)."
The amenity open space referred to in Clause 3.2 was marked with a green line on a plan annexed to the agreement. Its area was shown as 3,979 square metres.
"Erection of an 11-19 age secondary school (1200 pupils) including pedestrian subway under St James's Road, ancillary sports pitches, community facilities and amenity open space.
At: LAND ADJACENT TO LYNTON ROAD & ST JAMES'S ROAD
(INCLUDING PATERSON PARK AND LAND TO THE EAST), SE16 in accordance with the planning application submitted on 8 October 2001 and amended on 19 December 2001."
This was an outline planning permission only. The matters were reserved for later approval, included the siting and design of all buildings to be constructed on the site.
The present proceedings
"(1)A quashing order to quash the resolution of
16 January 2002;
(2) A quashing order to quash the decision to grant
planning permission on 14 November 2002 pursuant to the resolution of 16 January 2002;
(3) A quashing order to quash the decision to grant
temporary planning permission on 9 December 2002;
(4) A declaratory order that the development is an EIA
(5) A declaratory order that the development proposals to
be assessed under the Environmental Impact Assessment includes the application for planning permission for a temporary facility for a secondary school."
1. The Council erred in law in resolving to grant planning permission in that it failed to determine the application in accordance with the provisions of Section 54A of the Act.
2. The Council erred in law in resolving to grant planning permission in that the officer's report to the Committee of 16 January 2002 and the oral advice provided by officers to the Committee regarding the availability and/or suitability of alternative sites and the consultation that had been carried out was significantly misleading.
3. The Council erred in law in resolving to grant planning permission in that it failed to take into account relevant considerations and/or took into account irrelevant considerations.
4. The Council erred in law in granting planning permission in that the permission issued on 15 November 2002 was substantially different to that considered by the Committee on 16 January 2002 and therefore was not properly issued under the resolution adopted by the Committee on that date. 5. The Council erred in law in that it failed to comply with the requirements of the Environmental Impact Assessment Regime.
1. In resolving to grant planning permission for the City Academy the Council erred in that it failed to take into account relevant considerations and/or it took into account irrelevant considerations.
2. The Development Control Committee of the Council ought to have considered the new matters which arose between 16 January 2002 and 14 November 2002 but it failed to do so.
3. The notice of planning permission issued on 14 November 2002 did not conform with the Development and Control Committee's resolution of 16 January 2002 or the Council's resolutions of 27 March 2002.
4. The Council failed to comply with the 1999 Regulations.
Ground 1: in resolving to grant planning permission for the City Academy did the Council err in that it failed to take into account relevant considerations and/or took into account irrelevant considerations?
"It is important that those who make determinations under the planning acts are familiar with sections 70(2) and 54A of the 1990 Act and apply the test imposed by Parliament. It follows that a planning officer reporting to and advising council members who are to make a relevant decision must keep the test in mind in the information and advice he provides and in the manner in which he provides it.
Clear mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submission to the council liable to be quashed. The overall fairness of the report, in the context of the statutory test, must be considered.
It has also to be borne in mind that there is usually further opportunity for advice and debate at the relevant council meeting and that the members themselves can be expected to acquire a working knowledge of the statutory test."
Judge LJ agreed, and he added these observations at page 18:
"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.
From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."
Butler-Sloss LJ agreed with both judgments.
1. The steps taken to meet the concerns of the Mayor related in part to areas of open space at Alexis Street and Catford Street. These were not part of the planning application being considered by the Committee.
2. In so far as the steps taken related to Paterson Park, they did not affect the outline permission which the Committee had resolved to grant on 16 January. The application site boundary remained the same. The permitted development remained the same. Within that framework, however, the public amenity area was going to be enlarged and was going to be maintained by the Corporation of London. Furthermore, the school facilities were going to be made available for use by the general public as well as pupils attending the school. These steps, which can only have been beneficial to the objectors, were not material considerations calling for fresh consideration by the Committee.
3. In any event all the steps taken to meet the Mayor's concerns were considered and approved by the full Council at its meeting on 27 March. This consideration at a plenary meeting of the Council made fresh consideration of the same matters by the Development Control Committee unnecessary.
Ground 2: did the Development Control Committee wrongly fail to consider new matters which arose between 16 January and 14 November 2002?
"119. Section 70(2) requires a planning authority, in 'dealing with' an application, to 'have regard' (among other things) to all 'material considerations'.
120. In the context of the activities of a planning authority in relation to a planning application, I find it hard to think of an expression which has a wider or more general meaning than the expression 'in dealing with'. In my judgment, 'dealing with' in the context of s.70(2) includes anything done by or on behalf of the planning authority which bears in any way, and whether directly or indirectly, on the application in question. Thus it extends beyond 'considering', so as to include administrative acts done by the authority's delegated officers. Nor, in my judgment, is the expression 'dealing with' to be limited to the particular acts of the authority in granting or refusing permission under s.70(1). I would regard such a construction as an unjustifiable limitation on the natural meaning of the words. In temporal terms, the first act of a planning authority in 'dealing with' an application will be its receipt of the application; and its final act will normally be the issue of the decision notice (certainly that is the position in the instant case).
121. In my judgment a consideration is 'material', in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.
'have regard to'
122. In my judgment, an authority's duty to 'have regard to' material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind - albeit that the application was not specifically placed before it for reconsideration.
123. The matter cannot be left there, however, since it is necessary to consider what is the position where a material consideration arises for the first time immediately before the delegated officer signs the decision notice.
124. At one extreme, it cannot be a sensible interpretation of s.70(2) to conclude that an authority is in breach of duty in failing to have regard to a material consideration the existence of which it (or its officers) did not discover or anticipate, and could not reasonably have discovered or anticipated, prior to the issue of the decision notice. So there has to be some practical flexibility in excluding from the duty material considerations to which the authority did not and could not have regard prior to the issue of the decision notice.
125. On the other hand, where the delegated officer who is about to sign the decision notice becomes aware (or ought reasonably to have become aware) of a new material consideration, s.70(2) requires that the authority have regard to that consideration before finally determining the application. In such a situation, therefore, the authority of the delegated officer must be such as to require him to refer the matter back to the committee for reconsideration in the light of the new considerations. If he fails to do so, the authority will be in breach of its statutory duty.
126. In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a 'material consideration' for the purposes of s.70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor,(b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision."
Ground 3: did the notice of planning permission issued on 14 November 2002 conform with the Development Control Committee's resolution of 16 January 2002 and the Council's resolutions of 27 March 2002?
Ground 4: did the Council fail to comply with the 1999 Regulations?
"development which is either -
(a) Schedule 1 development; or
(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location."
"The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so."
Schedule 2 to the regulations defines Schedule 2 developments by means of a table with two columns. Column 1 is headed "Description of development". Column 2 is headed "Applicable thresholds and criteria". Item 10(b) of Schedule 2 is described as follows in column 1:
"Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas."
The corresponding entry in column 2 reads: "The area of the development exceeds 0.5-hectare." Any change to an urban development project falling within item 10(b) is caught by item 13(a) of the table.
"Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development."
Regulation 5 provides:
"(1) A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.
(2) A request for a screening opinion shall be accompanied by -
(a) a plan sufficient to identify the land;
(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and
(c) such other information or representations as the person making the request may wish to provide or make.
(3) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information.
(4) An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request.
(5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request."
Schedule 3 to the regulations (which is referred to in Regulation 4(5) quoted above) provides:
"SELECTION CRITERIA FOR SCREENING SCHEDULE 2 DEVELOPMENT
1. Characteristics of development
The characteristics of development must be considered having regard, in particular, to -
(a) the size of the development;
(b) the accumulation with other development;
(c) the use of natural resources;
(d) the production of waste;
(e) pollution and nuisances;
(f) the risk of accidents, having regard in particular to substances or technologies used.
2. Location of development
The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular, to -
(a) the existing land use;
(b) the relative abundance, quality and regenerative capacity of natural resources in the area;
(c) the absorption capacity of the natural environment, paying particular attention to the following areas -
(ii) costal zones;
(iii) mountain and forest areas;
(iv) nature reserves and parks;
(v) areas classified or protected under Member States' legislation; areas designated by Member States pursuant to Council Directive 79/409/EEC on the conservation of wild birds (a) and Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (b);
(vi) areas in which the environmental quality standards laid down in Community legislation have already been exceeded;
(vii) densely populated areas;
(viii) landscapes of historical, cultural or archaeological significance.
3. Characteristics of the potential impact
The potential significant effects of development must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to -
(a) the extent of the impact (geographical
area and size of the affected population);
(b) the trancefrontier nature of the impact;
(c) the magnitude and complexity of the
(d) the probability of the impact;
(e) the duration, frequency and reversibility
of the impact."
Part 3 of the Regulations (comprising Regulations 7-9) sets out procedures for planning applications. Regulation 7 provides:
"(1) Where it appears to the relevant planning authority that -
(a) an application for planning permission which is before them for determination is a Schedule 1 application or Schedule 2 application; and
(b) the development in question has not been the subject of a screening opinion or screening direction; and
(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,
paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1).
(2) Where an EIA application which is before a local planning authority for determination is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations, the authority shall notify the applicant in writing that the submission of an environmental statement is required.
(3) An authority shall notify the applicant in accordance with paragraph (2) within three weeks beginning with the date of receipt of the application or such longer period as may be agreed in writing with the applicant; but where the Secretary of State, after the expiry of that period of three weeks or of any longer period so agreed, makes a screening direction to the effect that the development is EIA development, the authority shall so notify the applicant within seven days beginning with the date the authority received a copy of that screening direction.
(4) An applicant receiving a notification pursuant to paragraph (2) may, within three weeks beginning with the date of the notification, write to the authority stating -
(a) that he accepts their view and is providing an environmental statement; or
(b) unless the Secretary of State has made a screening direction in respect of the development, that he is writing to the Secretary of State to request a screening direction.
(5) If the applicant does not write to the authority in accordance with paragraph (4), the permission sought shall, unless the Secretary of State has made a screening direction to the effect that the development is not EIA development, be deemed to be refused at the end of the relevant three week period..."
The required contents of an environmental statement are set out in Regulation 2 and Schedule 4.
"33. As a starting point, authorities should study Schedule 3 to the Regulations ... which sets out the 'selection criteria' which must be taken into account in determining whether a development is likely to have significant effects on the environment. Not all of the criteria will be relevant in every case. It identifies three broad criteria which should be considered: the characteristics of the development (eg its size, use of natural resources, quantities of pollution and waste generated); the environmental sensitivity of the location; and the characteristics of the potential impact (eg its magnitude and duration). In the light of these, the Secretary of State's view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case:
(a) for major developments which are of more than local importance (paragraph 35);
(b) for developments which are proposed for particularly environmentally sensitive or vulnerable locations (paragraphs 36-40); and
(c) for developments with unusually complex and potentially hazardous environmental effects (paragraphs 41-42)
34. The number of cases of such development will be a very small proportion of the total number of Schedule 2 developments. It is emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA. Nor is the amount of opposition or controversy to which a development gives rise relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment.
43. Given the range of Schedule 2 development, and the importance of location in determining whether significant effects on the environment are likely, it is not possible to formulate criteria or thresholds which will provide a universal test of whether or not EIA is required. The question must be considered on a case-by-case basis. However, it is possible to offer a broad indication of the type or scale of development which is likely to be a candidate for EIA and, conversely, an indication of the sort of development for which EIA is unlikely to be necessary.
44. For each category of Schedule 2 development, Annex A to this Circular lists criteria and/or thresholds which indicate the types of case in which, in the Secretary of State's view, EIA is more likely to be required. Annex A also gives an indication of the types of impact that are most likely to be significant for particular types of development. ..."
Paragraph 46 gives guidance on multiple applications. Annex A to the Circular includes the following:
"The criteria and thresholds in this Annex (referred to in paragraphs 43-44) are only indicative. In determining whether significant effects are likely, the location of a development is of crucial importance. The more environmentally sensitive the location, the lower will be the threshold at which significant effects will be likely.
A19. Development proposed for sites which have not previously been intensively developed are more likely to require EIA if:
the site area for the scheme is more than 5 hectares; or
it would provide a total of more than 10,000 mē of new commercial floorspace; or
the development would have significant urbanising effects in a previously non-urbanised area (eg a new development of more than 1,000 dwellings)."