'Screening Out' EIA
The hurdle just got higher?
The question as to whether EIA of a proposed development is necessary as part of an application for planning permission is a crucial one for developers. A full EIA is time-consuming and costly.
“The precautionary principle requires that the likelihood of significant effect to the environment must be considered to exist when that likelihood cannot be objectively excluded...While EIA screening need not be elaborate, it must demonstrate that the issues have been understood and considered...The conclusion that EIA is not required must be based on information that is both accurate and sufficient. In my view, while care must be taken not to impose the burden of full EIA screening which Preliminary Examination is intended to avoid, nonetheless it necessarily follows, as much in Preliminary Examination as in EIA Screening, that any conclusion that EIA is not required must be objectively supportable.” (Holland J, Shadowmill v ABP [2023] IEHC 157 §62)
The Judgment of the Court of Justice of the European Union (“CJEU”) was given in Waltham Abbey Residents Association v An Bord Pleanála C-41/24 earlier this month. It has almost certainly, albeit less clearly than it could have, increased the standard of proof required before EIA can be properly dispensed with in the assessment of a development proposal. The result of the judgment will likely be that EIA will be required more often. This is consistent with a theme to which I have referred over a number of weeks now – the increasing importance of environmental law.
This post will look at;
the context of the Waltham Abbey decision (a long running Judicial Review of a SHD permission)
the basic rules governing which proposed developments are subject to EIA
the CJEU decision in Waltham Abbey
some uncertainties in the decision
some implications of the decision
The final two headings will be available to paid subscribers only.
The Context
European law is applicable across the Union but Waltham Abbey happens to be an Irish case which, at core, is an application for Judicial Review (commenced on 3 November 2020) of an An Bord Pleanála permission (307313, 16 September 2020) for a 123 apartment SHD at Ballincollig, Cork. The proposed development was 'sub-threshold', EIA was not mandatory and the Board proceeded without it.
Humphreys J found for the Applicant on domestic law points ([2021] IEHC 312) which decision was overturned on appeal ([2022] IESC 30). The High Court returned to the issues not thus far judicially considered at [2023] IEHC 146. One of those issues was the “adequacy of EIA in relation to bats” ([2021] §48) “and in particular” whether the Board “erred in screening out an [EIA] despite the lack of evidence in relation to these matters.” ([2023] §14)
In starting to consider whether or not the Board had erred, Humphreys J raised questions of the quality/quantity of information required for EIA screening including “when the information must be regarded as inadequate, and the impact of the obligation to exclude doubt [as to the possibility of significant harm] having regard to the precautionary principle.” ([2023] §27)
Eventually, Humphreys J decided to refer four questions to the CJEU, the most important of which sought a ruling as to whether the EIA Directive, interpreted in the light of the precautionary principle, means that where information provided to the competent authority creates a doubt as to the effect of the proposed development on the environment, is either the developer or the competent authority required to provide further information excluding such doubt ([2023], §28(iii), emphasis added).
In other words, must risk of significant harm be excluded before EIA can properly be 'screened out'?
The CJEU perhaps offered further clarification of the issue before it by referring to the questions raised by the High Court as to;
“the obligations, if any, that fall on the developer and the competent authority in the event that a third party provides the latter with additional information that is objectively such as to raise doubts as to the effects of that project on the environment.” (§24)
“in that regard, the referring court asks what threshold is to be applied, that is to say must the Board remove all reasonable doubt as to significant effects of that project on the environment or merely adopt a 'reasonable' decision based on the material before it.” (§25)
It will be noted that the CJEU's paragraph 24 refers to the role of “a third party”, its paragraph 25 does not.”
The Rules
The rules which determine whether or not a proposed development is subject to EIA are complex but, very briefly, there are three bases upon which an EIA might be required in support of an application for planning permission;
where the proposed development would be in a class specified in Part 1 of Schedule 5 of PDR 2001 and either such proposed development would equal or exceed any limit specified in that part, or no limit is specified (s172(1)(a)(i) PDA 2000)
where the proposed development would be in a class specified in Part 2 of Schedule 5 of PDR 2001 and either such proposed development would equal or exceed any limit specified in that part, or no limit is specified (s172(1)(a)(ii) PDA 2000)
where the proposed development would be in a class specified in Part 2 of Schedule 5 of PDR 2001 and is below the limits specified but, nonetheless, it is concluded that the proposed development is likely to have significant effect on the environment (s172(1)(b) PDA 2000) Waltham Abbey fell into this category as the proposed development comprised 123 dwelling units (see paragraph 10(b)(i))
It is in respect of the third category that a screening exercise for EIA will occur. Where such a planning application is submitted without an EIAR, the competent authority will undertake a 'Preliminary Examination' as to whether EIA can be dispensed with. Where there is any doubt, the case will almost always then be subject to 'Screening' as to whether it should be subject to full EIA. Screening is a slightly fuller assessment than Preliminary Assessment.
A screening decision is made on the basis of the information specified in Schedule 7A PDR 2001 and against the criteria set out in Schedule 7 PDR 2001.
Waltham Abbey concerned the standard required of a Screening decision to the effect that EIA was not required.
The Decision
The Court ruled that;
“an EIA must be carried out when there is a probability or a risk that the project in question will have significant effects on the environment. Taking into account the precautionary principle...it is considered that such a risk exists if it cannot be excluded on the basis of objective evidence that the project is likely to have significant effects on the environment [see...Commission v Poland C-526/16 §65/7] (§41)
“in the event of doubt as to the absence of significant effects, such an [EIA] must be carried out.” (§48)
