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LEGAL

Environmental impact assessments (EIAs) are carried out as part of the planning process if a proposed development is likely to have a significant effect on the environment, writes Sue Lindsey.

For certain types of development the planning authority has to decide whether an EIA is needed. To reach that decision a planning officer prepares a 'screening opinion'.

Is it right for a planning officer assessing whether a development is likely to have a significant effect (and therefore need an EIA) to take into mitigation measures that might be imposed by planning conditions with a view to limiting a development's environmental impact? This question has recently been considered in R v City of York (13.06.05).

A screening opinion is final.

Even if it later appears that a development will, after all, have signifi cant environmental effects, the mechanism of the planning system does not allow a screening opinion to be revisited. As a result, any challenge to a screening opinion needs to be brought by judicial review. That is the process by which the administrative actions of public bodies can be called into question and reviewed by the courts. It was by this route that R v City of York reached the courts.

The case concerned a proposed development occupying two blocks near York's city walls. There was much local controversy.

The planning officer's screening opinion was that the development was not likely to have a significant effect on the environment. In the light of that opinion there was no EIA, and planning permission was subsequently granted. Interested locals applied for judicial review of the screening opinion.

One of the grounds of their challenge was that the planning officer who prepared the screening opinion had made a legal error. They argued that he had been wrong to reach a negative screening opinion on the basis of an assumption that imposing planning conditions further down the line in the planning process would eliminate or sufficiently reduce any adverse environmental impact. The locals said that the planning officer was relying on the prospective imposition of conditions as a 'surrogate' of a full EIA.

The court concluded that the planning officer had been right. It was perfectly proper to rely on the fact that mitigating measures could be used while concluding that a development would have no significant adverse environmental effects.

The sort of conditions that the planning officer had in mind related to the impact of the development on air quality, noise and light.

There was also a subsequent condition imposed relating to the investigation of the impact of the development on groundwater conditions.

In deciding that the planning officer had acted properly the judge noted that the mitigation that could be used for these factors included tried and tested measures that are in common use.

While on these particular facts the planning officer's approach had been correct, the judge commented that had the conditions envisaged been novel mitigating measures, or had there been doubt as to whether or to what extent they would work, the position might have been different.

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