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‘Project Splitting’ Threat to Environmental Assessment Rules

The Court of Appeal has warned local planning authorities to be alert to the danger that the requirement to carry out environmental impact assessments when considering planning applications for industrial developments over one hectare in size may be subverted by splitting projects onto separate sites each of which fall below the geographical threshold.

However, in opening the way for two inter-dependent renewable energy plants on sites approximately one kilometre apart, the court emphasised that, on the facts of the case, there had been no deliberate attempt to subvert the requirements of the Town & Country Planning (Environmental Impact Assessment) Regulations 1999.

The developer had initially submitted a planning application for a biomass renewable energy plant and a combined heat and power plant on a single site. A planning officer had recommended granting consent on the basis of his screening opinion that the 2.7-hectare development was unlikely to have significant environmental effects.

Subsequently, the developer’s plans were amended so that the two plants would be constructed on sites about one kilometre apart and connected by a pipeline. No second screening opinion was given prior to the local planning authority granting both planning applications. The High Court subsequently dismissed a local resident’s judicial review challenge to those decisions.

The Court of Appeal accepted the objector’s argument that, as the two plants were inter-dependent and an integral part of the overall project, they should have been viewed by the local authority as a single planning unit.

However, in dismissing the appeal by a majority, the court emphasised that the initial planning application had been subjected to a very detailed screening opinion and there was no suggestion that, by separating the two plants, the developer had been seeking to subvert the requirements of the regulations. There was also no evidence that the council would have reached a different decision had a second screening opinion been submitted after amendment of the plans.