“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.”
“Activities in the past, present and future can all have a bearing on the project being assessed and will influence the time frame set for the EIA. Setting time frames or ‘boundaries’ will allow for the inclusion of past and future developments which could lead to indirect or cumulative impacts or impact interactions. Time boundaries will depend upon: • Historical use of the area, e.g. industrial activities or landfill; • Information available; • The local, or national planning horizons for future development; • Lifespan of the project from construction to decommissioning. These are considered in more detail below. In practical terms the extent of the assessment in terms of how far into the past and into the future will be dependant upon the availability and quality of information. Past activities can often be identified from historical maps, present activities from current maps, and future development activities from development plans. … Setting the time boundary in terms of future developments can be based on information provided from the relevant planning authorities during consultation and from information contained within development plans produced by local or perhaps national authorities. In setting the future time boundary it is suggested that in general, beyond 5 years there is too much uncertainty associated with most development proposals. It is therefore recommended that in the majority of cases the limit does not exceed 5 years into the future. … There are limitations in defining the area and time boundary that would be affected by the project. For example, it is only reasonable to consider current events and those that will take place in the foreseeable future. Furthermore, the assessment can only be based on the date that is readily available. There needs to be a cut off point at which it can be said that the impacts cannot be reasonably attributed to the project. This should be established. For example, this may be the point beyond which there can no longer be any reasonable mitigation. Within the Environment Statement the cut off point used for the assessment should be defined.”
“When should cumulative effects be assessed? Each application (or request for a screening opinion) should be considered on its own merits. There are occasions where other existing or approved development may be relevant in determining whether significant effects are likely as a consequence of a proposed development. The local planning authorities should always have regard to the possible cumulative effects arising from any existing or approved development. There could also be circumstances where two or more applications for development should be considered together. For example, where the applications in question are not directly in competition with one another, so that both or all of them might be approved, and where the overall combined environmental impact of the proposals might be greater or have different effects than the sum of their separate parts.”
“43. What emerges is that the test to be applied is: "Is this project likely to have significant effects on the environment?" ... . The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case. The Commission Guidance recognises the value of national guidance and planning authorities have a degree of freedom in appraising whether or not a particular project must be made subject to an assessment. ... 44. The criteria in the annexes to the Regulations justify the approach to the question proposed in Circular 02/99, paragraphs 33, 34 and annex A (cited at paragraphs 17 and 18 above). It is stated, at paragraph 34, that the number of cases of schedule 2 development which are EIA developments will be "a very small proportion of the total number of schedule 2 developments".”
“The project itself will not generally include development that was once on the site but has now been removed or whose use has come to an end, or further development that might – or might not – later come forward. When identifying the project it has to screen an authority does not have to resurrect the past or speculate about proposals the future may bring.”
“102. There has to be a sensible limit to what a screening decision-maker is expected to do. This view is supported in the cases to which I have referred, notably, for example, in Bateman (see paragraph 24 above). Conjecture about future development on other sites that might or might not act with the development in question to produce indirect, secondary or cumulative effects is not in the screening decision-maker's remit. I do not think the precautionary approach extends to that. And when it is suggested in a claim for judicial review that a screening decision was deficient because some potential cumulative effect was left out, it is not enough for a claimant simply to point to other developments in the locality that have been or might be approved, and to leave it to the court to work out whether any aggregate effects were unlikely to be significant. Unless it is obvious that relevant and potentially significant effects on the environment have been overlooked, the court will need some objective evidence to show this was so. It will need to be satisfied that the authority responsible for the screening decision was aware, or ought to have been, of the potential cumulative effects; that the screening opinion could not reasonably have been negative if those potential effects had been considered; and that this was, or should have been, apparent to the authority at the time.”
“In their Lordship’s view a properly qualified and alert chief engineer would have realised there was a real risk here….he appears to have held that if a real risk can properly be described as remote it must be held to be not reasonable foreseeable. That is a possible interpretation of some of the authorities. But this is still an open question and on principle their Lordships cannot accept this view. If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage and involved no expense.”
“In R. (on the application of Bateman) v South Cambridgeshire District Council[2011] EWCA Civ 157 Moore-Bick L.J. said (in paragraph 20 of his judgment) that it was important to bear in mind "the nature of what is involved in giving a screening opinion". A screening opinion, he said, "is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others". Nor does it require "a full assessment of any identifiable environmental effects". What is involved in a screening process is "only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all". The court should not, therefore, impose too high a burden on planning authorities in what is simply "a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment …".”
“The only endorsement of such a development lies in a Core Strategy which is at an advanced stage, albeit that relevant policies appear to be the subject of objection, and thus in a development management situation ordinarily one would seek to attach more than limited weight to such a policy. Thus if matters rested there it would be difficult to conclude that such a development was not then a reasonably foreseeable one I note that Mr Tucker considers it would be “difficult”, not impossible. . However development plan preparation in Leicestershire is far from straightforward even as one sits two weeks before the commencement of an examination. The letter [of24 January 2014 ] from the Inspector appointed to examine the plan on any rational view casts a dark shadow over the prospect of this plan being ever found to be sound in its current form. Failures over the assessment of the housing land requirement, the deliverability of housing and the duty to co-operate raised in the Inspector’s letter are not matters of academic interest only. Rather they go to the very heart of plan preparation such that resolution of each looks set to prompt a substantial rethink on the part of the LPA and a return to the metaphorical forward planners drawing board. That is not an idle fear since it has been experienced in other parts of Leicestershire, and other core strategy examinations involving the same Inspector. It is unlikely that the forward planning team of Charnwood will be looking forward to the forthcoming examination with any degree of optimism. Inspector’s [sic] charged with the duty to examine plans on behalf of the Secretary of State do not raise such issues or write such letter lightly, and in my view that comprises something of a ‘game changer’ when assessing whether it can be said that the endorsement of the SUE in the Core Strategy and its subsequent delivery are at this stage reasonably foreseeable. Rather, were one to have to form a view at this stage, then I would assess the probability of such being delivered, as being highly uncertain.”