screening for environmental impact assessment projects in england: what screening?

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Screening for environmental impact assessmentprojects in England: what screening?Dr. Joe Weston aa Postgraduate Taught Programmes and Professional Development, Department ofPlanning , Oxford Brookes University , Gipsy Lane, Headington, Oxford , OX1 0BP , UKPhone: +44 1865483434 E-mail:Published online: 20 Feb 2012.

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Impact Assessment and Project Appraisal, 29(2), June 2011, pages 90–98 DOI: 10.3152/146155111X12913679730593; http://www.ingentaconnect.com/content/beech/iapa

Screening for environmental impact assessment projects in England: what screening?

Joe Weston

Previous survey research into screening for environmental impact assessment (EIA) in England has found that few local authorities have very much experience of dealing with EIA projects. This research examined actual case files of projects that fall within the ambit of the UK’s EIA Regulations and found an explanation for this lack of experience. In the majority of the cases examined they were not even screened to see if an EIA was required. This suggests that there is widespread misunderstanding of the EIA regulatory requirements by English local planning authorities. It is also suggested that there may be a culture of resistance to EIA among planners and that this can undermine both EIA effectiveness and the theories used to justify its use.

Keywords: environmental impact assessment, screening, planning, development control

UCH OF THE WORK ON THE EFFEC-TIVENESS of environmental impact as-sessment (EIA) that has been published

attempts to understand, justify and improve EIA within various theoretical models (see for example Bartlett and Kurian, 1999; Cashmore et al, 2004). There also seems to be a growing acceptance that when examined against EIA practice all the theoreti-cal modules so far advanced on EIA fail to provide an adequate explanation or justification for the pro-cess (see Cashmore, 2004; Cashmore et al, 2004; Pische and Cashmore, 2006; Weston, 2000, 2010).

One explanation for this failure is that both the procedural (role in decision-making) and substantive (social learning and communicative) theories of EIA are developments of planning theories (Weston, 2010) and planning theories are themselves weak when it comes to explaining practice (Allmendinger, 2002: 20; Friedmann, 1998). There is a general acknowledgement in the literature that planning

theory was first developed and focused on master planning, forward planning and policy making, and that it is largely prescriptive and normative and does not deal with the everyday decisions of consenting individual development projects that EIA deals with (Fainstein, 2000; Friedmann, 1998).

A further difficulty arises out of the international, or at least western centred, focus of planning theory and the developing EIA theories (Friedmann, 1998). As Friedmann (1998) acknowledges, planning theo-ry has largely been the province of North American and European academics and this international focus creates major problems in its application to individ-ual countries. Similarly every jurisdiction that oper-ates EIA procedures does so in the context of its own culture of decision-making, its own legislative background and its own environmental priorities. To understand EIA and to assess its effectiveness in terms of its procedural role or substantive purpose can therefore only be accomplished on the basis of an understanding of its operation within specific jurisdictions and the culture of decision-making that exists there.

EIA of development projects has been a formal re-quirement in the UK for more than two decades. It takes place, primarily, within the land-use planning

system and more specifically within the development

M

Dr Joe Weston is Director of Postgraduate Taught Programmesand Professional Development at the Department of Planning,Oxford Brookes University, Gipsy Lane, Headington, OxfordOX1 0BP, UK; Email: [email protected]; Tel: +441865 483434.

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Screening for EIA projects in England: what screening?

Impact Assessment and Project Appraisal June 2011 91

control process. Development control (known in some circles as development management) is the au-thorisation of individual development projects through a consenting system that is complex, legalis-tic and inherently political (see Booth, 2009). The process requires the proponent of a development project to submit a planning application to the local planning authority (LPA), normally the local council for the area in which the proposed development site is located. The application must be made on pre-scribed forms and is first made subject to a variety of administrative tests to ensure that it is valid, and is accompanied by the correct plans, fee and other relevant documentation. Then there are a number of legally required technical tests that ensure that the correct bodies are consulted and that the correct public notices have been posted.

Part of these technical tests is, for certain projects, the screening opinion that has to be made to deter-mine whether the project should be subject to EIA. The UK EIA Regulations,1 and the EU Directive2 on which they are based, make clear that project author-isation (in this case planning permission) cannot be granted for ‘EIA Development’ unless there has been an EIA and an Environmental Statement has been submitted by the project proponent and that statement has been taken fully into account by the LPA before it arrives at its decision (Regulation 3). This blanket ban on the granting of planning permis-sion for EIA Development where no EIA has taken place provides an opportunity for opponents to challenge the decision through judicial review. Following the ruling in Catt v Brighton and Hove City Council and Brighton and Hove Albion FC [2007] it is clear that screening is a statutory deci-sion that must be made by the LPA before it can consider an application to which the EIA Regula-tions apply.

Screening in EIA, the determination of whether a

project should be subject to EIA, is a defining feature

of the procedures as a whole (Pinho et al, 2010; Wood

and Becker, 2005). It is the first formal point, in most EIA systems, where a project is examined by the

competent authority to assess the likely significance

of its environmental impacts. Furthermore, the

amendments made to the EU EIA Directive in 1997

increased the importance of screening as part of the

regulatory process to the extent that even quite small projects are now subject to EIA screening (CeC, 2003; Christensen 2006). The amended Directive also

required the results of the screening exercise to be

made public and provided, at Annex III, screening

criteria (CeC, 2003; Jiricka and Pröbstl, 2009). Studies into screening are more limited than other

aspects of EIA (Wood and Becker, 2005) and those that do exist demonstrate a wide variety of ap-proaches. In the European Union, for example, while all countries operate under the same EIA Directive there remains a wide variation in screening practice (Gangolells et al, 2011; Pinho et al, 2010; Weston, 2007). Typically these variations stem from the use

of different thresholds or triggers for EIA. In some

cases there can be very different thresholds for the

same project types in neighbouring countries and re-gions (see CeC, 2003; Jiricka and Pröbstl, 2009; Wes-ton, 2007). Research into screening practice in the UK

has also demonstrated a wide variation of approaches

even under the same domestic legislation. Wood and

Becker (2005) defined these different approaches as:

’Precautionary’, where screening decisions lead to an EIA in more than 50% of cases;

‘Moderate’, where screening decisions lead to an EIA in 25% to 49% of cases; and

‘Minimalist’, where screening decisions lead to an EIA in less than 25% of cases.

Wood and Becker’s (2005) research also found that some 9% of LPAs had, at that time, yet to make a screening decision and a further 50% of authorities had made five or less screening decisions. Earlier re-search on screening in the UK suggested that around 5% of local authorities avoid seeking an EIA ‘if at all possible’ (Weston, 2000). So we may add to Wood and Becker’s typology of screening ap-proaches the further approach of ‘resistant’. Reasons given for this resistance include the resources and time implications for a LPA once an Environmental Statement is submitted (Weston, 2000). A further reason could be what Stoeglehner et al (2009) term in SEA the disowning of the process whereby plan-ners ‘refuse to acknowledge or accept them as their own, repudiate them, deny or refute them, or ignore them’. One reason given for the disowning of EIA is that the planners consider that they always take the environmental impacts of a project into account through the normal planning process and EIA is seen as an unnecessary additional burden Stoeglehner et al (2009). Where there is a culture of ‘resistance’ or ‘disownment’ the implications for the effectiveness of EIA are clear and act as further evidence of the weaknesses in the general procedural and substan-tive theories of EIA in explaining and furthering its effectiveness.

The Wood and Becker (2005) research was based on a questionnaire of LPAs in England and Wales

Where there is a culture of ‘resistance’ or ‘disownment’ the implications for the effectiveness of EIA are clear and act as further evidence of the weaknesses in the general procedural and substantive theories of EIA in explaining and furthering its effectiveness

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and while the results do provide an interesting in-sight into LPA approaches to screening they do leave an important question in terms of EIA effec-tiveness to be answered. Given the statutory re-quirement to screen all Schedule II projects, why have so many local authorities not yet undertaken a screening decision and why have so many only made very few? This paper seeks to answer this question and reports the results of a study that exam-ined the practice of screening in England and the de-gree to which the statutory requirement to screen projects for EIA is being carried out.

Context of the study

Screening is a procedural stage that, as with many other areas of environmental decision-making, has both a statutory element and a discretionary element (see Bell and McGillivray, 2006: 4). The actual de-cision as to whether a project should be subject to EIA is largely discretionary and based upon a com-petent authority’s consideration of whether or not the project is likely to have significant impacts upon the environment. It is now widely recognised that the significance test in EIA is largely subjective (see Beanlands, and Duinker, 1984; Beattie, 1995; Fortlage, 1990; Lawrence, 2007; Wilkins, 2003; Wood, 2007; Weston, 2000, 2006) and therefore no legal ‘hard’ rules can apply to its determination. In-deed, the UK courts have shown that they will only intervene in a screening decision where it can be demonstrated that a competent authority has failed to take into considerations matters that it should have done when arriving at its screening decision (R (Mortell) v Oldham Metropolitan Borough Council [2007]).

The statutory element of screening certain projects

for EIA, under the EU Directive and the UK EIA

Regulations,3 is, on the other hand, not discretionary

and is a legal requirement. The EU Directive provides

two Annexes of project types and these are reflected

in Schedules 1 and 2 of the UK Regulations. For

Schedule 1 projects, as with Annex 1 of the Directive, EIA is mandatory. Schedule 2 projects, on the other

hand, must go through a screening exercise to deter-mine whether an EIA is required. The UK EIA Regu-lations provide a list of Schedule 2 project types that must be screened together with thresholds that auto-matically exclude certain sizes of projects from EIA, unless the proposed development lies within a ‘sensi-tive area’ as defined by the Regulations. A LPA can

receive a screening request from the project propo-nent in advance of the submission of a planning appli-cation and the LPA is required to provide a screening

opinion within a prescribed time period and that opin-ion must be recorded on a public register. However, even where no request is made, a LPA must screen all planning applications for project types listed in

Schedule 2 to determine whether an EIA is required

before the determination of those applications.

This legal aspect of the screening decision is framed within the particulars of the regulations and the interpretation of those regulations. Legal inter-pretation is often provided in the interpretation sec-tions of legislation and regulations and also by the courts through the system of judicial review — the legal challenge of public authority decisions by indi-viduals aggrieved by those decisions (see Bell and McGillivray, 2006: 340–348) — and the precedents that these set. These interpretations help to shape the process of decision-making in EIA by establishing procedural rules (Holder, 2004: 250–271; Weston, 1997, 2002, 2003).

The interpretation of legal rules and the applica-tion of those rules will be governed by the particular culture of legal decision-making that applies within a particular jurisdiction. In the UK the traditions of common law require the application of strict literal interpretation ‘the letter of the law’ and this has re-sulted in a particular form of legal decision-making in environmental matters (see Bell and McGillivray, 2006: 92–105; Slapper and Kelly, 2004: 193–194). Elsewhere in Europe there is a different tradition, the civil code, where decisions are based on a purposive interpretation or the ‘spirit of the law’ (see Glenn, 2000: 141–143; Slapper and Kelly, 2004: 193–194).

These different traditions of legal interpretation help to explain the wide variation in approaches to EIA screening found across the European Union dis-cussed above. The different traditions of interpreta-tion have proved to be particularly challenging for environmental decision-making in the UK because of its place within the European Union. Most envi-ronmental control mechanisms now come from Eu-ropean Union policy or in the form of legislation (Bell and McGillivray, 2006: 180). European envi-ronmental law is usually in the form of Directives and these have to be transposed into domestic law. The transposition of European Law into domestic law is problematic when the two legal traditions and cultures are different (Weston, 2004). Once the Eu-ropean Directive is transposed into UK domestic law its operation, as in the case of the Environmental Impact Assessment Directive, is regulated through the courts through the system of judicial review. The courts then apply a common law strict interpretation of the wording of the relevant legislation or regula-tion to determine the outcome of the case. That strict interpretation then results in a particular approach to the application of the Directive in the UK.

In the UK this culture of legal interpretation meant that the early years of the operation of the EIA Directive (1988–1998) were characterised by a minimalist approach to implementation (Lambert and Wood, 1990; Sheate, 1996; Weston, 2002). The courts looked at the core duty requirement of the regulations ‘to take the environmental information into account’ in planning decisions and ruled that was all a decision-making body had to do. This ap-proach had direct implications for most aspects of EIA including the degree of commitment to the

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screening and scoping process and the quality of the Environmental Statements produced. Then, in the mid-1990s, case law started to emerge from the Eu-ropean Court of Justice (ECJ) that made clear that the transposition and implementation of the EIA Di-rective should be based upon the purposive interpre-tation applied by the EJC itself (CeC, 2003; Weston, 2002, 2004). As a result the UK courts have ruled that they would in future be applying the ‘wide scope and broad purpose’ to the interpretation of the UK’s EIA Regulations as required by the ECJ.4 However, they have applied that ‘wide scope and broad purpose’ principle on the basis of a strict interpretation of what that principle means.

One of the first rules to emerge from the applica-tion of this new principle was that all projects listed in Schedule 2 of the UK EIA Regulations had to be sub-ject to screening and, following R (on the application of Goodman) v Lewisham LBC [2003], the wide scope and broad purpose principle also applied to the interpretation of the scope of the individual project types listed in Schedule 2. In particular the Schedule lists as one project type, at Schedule 2 10(b), ‘Urban Development Projects’. Based on the wide scope and broad purpose principle, in an urban society such as the UK, all development projects can be described as ‘urban development’ and as such all proposals for new development, and indeed changes and exten-sions to existing projects, should be screened for EIA. In 2008 the European Commission issued a guidance document for the interpretation of project types listed in the Annex I and II of the Directive that reinforced this view. According to the Commission’s guidance, urban development projects are defined as including ‘Construction projects such as housing develop-ments, hospitals, universities, sports stadia, cinemas and theatres should also be assumed to fall within this category. The underlying principle is that all these project categories are of an urban nature and that they may cause similar types of environmental impacts’ (CeC, 2008: 34–35). The result of all of this is that the UK Planning Inspectorate (responsible for determin-ing appeals against the refusal of planning permission by a local authority) regularly screens even very small projects, including house extensions, for EIA (UK Planning Inspectorate, personal communica-tion, 25 November 2009).

The research focus

The research for this paper has been based on an en-tirely different approach from the Wood and Becker (2005) study. Rather than ask local authorities for their approach to screening, we reviewed actual planning applications for urban development pro-jects. This information is available through local au-thority public planning registers and their public access web sites and those sites contain, among oth-er material, details of the project, including applica-tion forms, plans and maps, the screening opinion

(where one has been made), the Environmental Statement (when submitted) and the planning of-ficer’s report to the planning committee. There is no statutory or regulatory prescribed format for the con-tent and structure of the planning officer’s report but they will typically explain the proposed project; de-scribe the site and its location; look at the policy framework in which the project needs to be consid-ered; set out the results of the consultation process; review the arguments for and against the application; and make a recommendation to either approve or re-fuse the authorisation of the project. Because there are no formal legal controls over the content of these reports, there is no requirement for them to discuss the screening of projects for EIA or even the con-tents of an Environmental Statement. However, there are legal requirements to place the screening opinion on the planning register and, as these web sites are now used as part of the public consultation process, the Environmental Statement is normally also placed upon the same site.

The sample for this study was selected to be as representative as possible within the constraints of the available time and resources. The development project proposals chosen for examination were all urban development project applications of more than 0.50 hectares. This threshold was used as a search variable because the UK EIA Regulations establish a threshold for urban development projects of 0.50 hectares below which EIA will never be required un-less the site is in a specified type of protected area such as a National Park, Natura 2000 site or an Area of Outstanding Natural Beauty. The Regulations therefore require that all urban development projects with a land take of 0.50 hectares and above must be screened for EIA.

The search required a sample of as many such projects as possible, but in order to make some re-gional comparisons 36 projects were selected from four local authorities in each of the nine English re-gions. This represents 11% of all local authorities that deal with urban development project applica-tions in England. The local authorities chosen in-cluded a major city or conurbation within each region, a smaller urban authority and rural authori-ties and four London boroughs. To ensure there were not significant differences in the policy or legal framework the projects chosen were all presented to the respective planning committees between January and June 2010.

Results and analysis

All of the cases reviewed were for mixed use or housing developments and all meet the criteria for screening as Schedule 2, 10b, urban development projects that are above 0.5 hectares. The average site area for all of the cases reviewed was 2.8 hectares and the average of those cases where no EIA was completed was 2.31 hectares. Only 6 of the 36

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projects were less than 1 hectare in site area and of these only two were below 0.6 hectares. There was no screening opinion discussed in the planning of-ficer’s report to the planning committee, or a screen-ing opinion on the LPA’s Planning Register or any other case file evidence that a screening opinion had been made in 23 of the 36 cases (around 64%) (see Table 1).

In the 13 cases where screening had occurred this was noted either in the planning officer’s report; or recorded in a formal screening opinion on the LPAs Planning Register; or simply as part of a file note on the case file material provided on the LPA’s public access website for the planning application. In some cases the recording of a screening opinion was simp-ly a box ticked on an application checklist that is used to ensure that the various administrative and pre-determination requirements have been complet-ed. While no direct contact with the LPAs was at-tempted to check these findings (because of the suspected unreliability of responses — LPAs are un-likely to freely admit to being in breach of the EIA Regulations when a case is still live and the decision capable of being challenged in the courts), it is con-sidered significant that while there is evidence of screening, in one form or another, in 13 cases there is no evidence whatsoever in 23. It could be argued that this absence of evidence of screening could be little more than an administrative failure to record the decision. However, as screening is a statutory decision one would reasonably expect some record, even if it is simply a tick against a relevant box in a checklist, that the decision has been made.

The average size of the sites where there was no evidence of screening was 1.6 hectares, with the smallest being 0.54 hectares and the largest being 8 hectares. All were therefore above the exclusion threshold and where screening for EIA is mandatory under the UK EIA regulations. Of these cases 20 were recommended for approval and subsequently went on to be granted planning permission and as

such could have been the subject of a judicial review legal challenge for failing to make a statutory screening decision. Because of these legal implica-tions it is not regarded as necessary, for the purpose of this paper, to name the LPAs or the development projects involved. In one of the cases examined the LPA had failed to screen the project for EIA despite it being above the 0.50 hectare threshold and despite the fact that the site is within a designated Area of Outstanding Natural Beauty, where, under the EIA Regulations, the exclusion thresholds do not apply. In this instance no real harm was done as the appli-cation was refused planning permission and the ap-plicant appealed and the Planning Inspectorate issued a screening opinion before determining the appeal.

Table 1 shows how these non-screening decisions were spread over the nine English regions. The four Greater London authorities performed best with four out of the four LPAs screening projects for EIA. On the other extreme none of the LPAs in the East of England, West Midlands and Yorkshire and Humber regions screened any of the projects for EIA and all but 1 of the 12 applications were granted planning permission in direct contradiction with the EIA Reg-ulations (Table 2). Where screening opinions had been given by the LPAs none required an Environ-mental Statement to be submitted and of the 36 cases only two Environmental Statements were submitted and the documents reviewed suggest that this was a result of the developer submitting the Environmental Statement voluntarily rather than the result of a LPA screening opinion.

Closer examination of the cases highlights some glaring gaps in knowledge and understanding of the EIA Regulations. In one case, where a screening opinion had been made, the planning officer report-ed to the planning committee that it is the ‘duty’ of the applicant to submit a screening opinion with their planning application. No such duty exists under the UK EIA Regulations and the Regulations and the

Table 1. Screening decisions by region

Screening opinion

Environmental Statement submitted

No screening

East Midlands 1 1 2

East of England 0 0 4

North East 2 0 2

South East 2 0 2

West Midlands 0 0 4

North West 1 1 2

South West 1 0 3

Greater London 4 0 0

Yorkshire & Humber

0 0 4

Totals 11 2 23

Table 2. Non-screening decision totals and approved or refused planning permission by region

Total Approved Refused

East Midlands 2 2 0

East of England 4 4 0

North East 2 2 0

South East 2 1 1

West Midlands 4 4 0

North West 2 2 0

South West 3 2 1

Greater London 0 0 0

Yorkshire & Humber

4 3 1

Totals 23 20 3

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advice offered in the former Department of the Envi-ronment, Transport and the Regions’ Circular 2/99 The Town and Country Planning (Environmental Impact Assessment) Regulations (1999), and Envi-ronmental Assessment: A Guide to the Procedures (2000) and the Department for Communities and Local Government’s Draft Revised Circular on EIA (2006) all make clear that it is the LPA’s responsi-bility to make the screening decision. This advice on the operation and interpretation of the EIA Regula-tions is supplemented by updated advice in the form of letters to Chief Planning Officers from the Secre-tary of State for Communities and Local Govern-ment (responsible for planning and EIA in England) that explain the implications for EIA after each new judicial review challenge.5 There can, therefore, be little real excuse for a local authority planner not to understand their role in the screening process.

In a number of the cases examined where there was no evidence of screening, there was clear evi-dence that a great deal of environmental assessment work had been carried out without the formal con-sideration of the need for an EIA or the submission of a full Environmental Statement. Many applica-tions were accompanied by traffic assessments, eco-logical survey results (including bat surveys), and noise and landscape reports. Clearly in these cases there had been a recognition that there was the po-tential for the projects to have environmental im-pacts and that these could be considered ‘likely to be significant’. The submission of these specific as-sessments did not seem to trigger a consideration of whether an EIA was required or not.

In the majority of the cases where screening for EIA had not taken place conditions on the planning permissions had been imposed requiring assessments of various kinds to be conducted before construction work could commence (the relevance of planning conditions to EIA and screening is discussed further below). In one example the condition required a full land contamination survey and remediation strategy to be submitted to the LPA to ensure the land was ‘suitable for the proposed use’ (housing). Land con-tamination is specifically listed in Annex III of the Directive and Schedule 3 of the EIA Regulations as a criterion to be considered in screening projects for EIA, something that appears to have been complete-ly missed by the LPA. A statement from a Yorkshire and Humber planning committee report reviewed for this study is particularly telling: ‘A habitat Survey and/or an Environmental Desk Study have not been supplied with the application. Consequently, insuffi-cient information has been provided to fully assess the impact of the proposal on biodiversity’. This problem could easily have been overcome by screen-ing for EIA and demanding that the applicant submit an Environmental Statement.

In a proposal for a social housing project the local authority that was dealing with the application was also the project proponent. While it is a long-accepted principle of UK planning that there is

nothing intrinsically wrong with one council de-partment submitting a planning application to anoth-er, in this case the decision was flawed because of the procedural error of not screening for EIA. In a West Midlands committee report there is quite a long discussion of the potential impacts upon a pro-tected species and the implications in terms of the requirements of the EU Habitats Directive and Arti-cles 3 and 4 of the Conservation (Natural Habitats) Regulations 1984. There is not room here to discuss the legal and policy framework of applying the ap-propriate assessment tests of the Habitats Directive, but it would appear from the evidence of the report in question that some planning officers are as poorly informed about the Habitats Directive as they are the EIA Directive.

In the cases where there had been screening and where no EIA was required there appeared to be fur-ther confusion over the process. EIA had been ruled out in every case on the basis of there being no sig-nificant environmental effects. Yet, in the majority of cases, conditions were attached to the planning permissions requiring that, prior to the commence-ment of the development, assessments of matters in-cluding land contamination, impact of protected species and noise were required and that those as-sessments would have to include mitigation strate-gies. The conditions require that these assessments and mitigation strategies had to be approved by the LPA before any construction work could commence. One test of significance that has been applied by the courts is whether prior assessments are required by condition before the development is allowed to pro-ceed (see R v Cornwall County Council, ex parte Hardy [2001]). Conditions are attached to planning permissions to control the development and to make the development project more acceptable than it oth-erwise would be (see DOE, 1995). There are strict tests on what constitutes a legally enforceable condi-tion under UK planning law and the most important of these is perhaps the test of necessity. This test means that a condition cannot be attached to a plan-ning permission unless planning permission would have to be withheld without that condition being in force (DOE, 1995: para. 14). If planning permission would have to be withheld if a condition requiring an ecological or land contamination assessment and mitigation strategy could not be attached, then those matters must, by any reasonable judgement, be con-sidered significant and as such an EIA would be required.

The language used in the officers’ planning com-mittee reports also provides evidence of their level of knowledge and commitment to EIA. In one case from the North West a member of the public had asked that an independent body complete a screen-ing opinion before the application was considered. The planning officer correctly reported to the com-mittee that the EIA Regulations make no provision for the use of independent bodies to carry out screening. The report then explains the LPA’s own

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screening decision and states that ‘At 1.8 hectares, the site is just over 0.5 hectares…’. As the proposed development site in this case was some three times over the threshold the use of the word ‘just’ is somewhat misleading. The opinion goes on to report that various ‘expert reports’ had been submitted with the application that dealt with ecology, landscape, traffic, pollution and drainage and these reports also described how the impacts could be mitigated. On that basis the officer concluded that the impacts are ‘not considered to be significant and will be localised’.

There are two points to make about this opinion. Firstly, there is nothing in the EU EIA Directive or the UK EIA Regulations and guidance that limit EIA to non-localised impacts. Indeed the UK Govern-ment’s guidance on screening states: ‘The funda-mental test to be applied in each case is whether that particular type of development and its specific im-pacts are likely, in that particular location, to result in significant effects on the environment’ (Depart-ment of the Environment, Transport and the Re-gions, 1999: 10). Secondly, the UK courts have made clear that the mitigation of impacts can only be taken into consideration in EIA screening in very particular circumstances and where there is certainty of their success (see Fernback and Others v Harrow LBC [2001]; R (on application of Lebus) v South Cambridgeshire District Council [2002]; Catt v. Brighton and Hove City Council and Brighton and Hove Albion FC [2007]). Even where LPAs are making screening decisions, it appears from this research, they are not fully aware of the legal requirements of the process.

Discussion

The implementation of the EU EIA Directive and the UK EIA Regulations takes place at the local lev-el through their application by LPAs. The evidence from Wood and Becker (2005) was that implementa-tion was varied because of the different levels of ex-perience that LPAs had with dealing with EIA projects. The evidence from this research suggests something different and perhaps more serious. From the examination of planning application documents provided on local authority websites it has been found that very many LPAs (the majority in this sample) are simply not applying the EIA Regula-tions where they should be and, even where projects are being screened for EIA, the tests for significance that are applied are poorly justified and in some cas-es in conflict with the rulings of important court judgements.

The reasons for this will be varied and we can easily claim, as is often argued in papers like this, that there is a need for more training and education in EIA. We have in fact had 22 years in which to teach the rudiments of screening and apparently have still not managed to reach the right people.

Most, if not all, planning courses in universities in-clude EIA as a part of the programme and continu-ous professional development courses are on offer all over the country on an almost continuous basis. There could be a call, as there often is, for more guidance, but the Government’s EIA website con-tains a complete set of all the necessary guidance, links to non-governmental guidance, and is kept up to date in terms of the most important court rulings. It is difficult to see, therefore, that either a lack of training or guidance can be the most fundamental reason that so many LPAs are applying the EIA Regulations incorrectly.

A further explanation for the findings from this research could simply be a deep level of incompe-tence within English LPAs and an inability to recog-nise their statutory duties and the need to properly record and make public the results of their screening decisions. Perhaps, though, there is another, more deep-seated, reason why so many LPAs are not screening projects for EIA. When EIA was first in-troduced into the UK planning system there was a good deal of resistance from planners who argued that they had always considered the environmental implications of projects in their decision-making (see Weston, 1997). Indeed, the first decade or so of implementation of the EIA Directive in the UK was marked by a minimalist approach (Lambert, and Wood, 1990; Sheate, 1996; Weston, 2002). These research findings, both in the absence of evidence of screening and the poor application of screening cri-teria, suggest that the culture of ‘resistance’ or ‘dis-ownment’ remains strong. The fact that in some cases LPAs were asking for reports on individual environmental impacts and yet not asking for a full EIA suggests that the avoidance ‘if at all possible’ culture, found in the 2000 study (Weston, 2000), is an important, and often neglected, factor in assessing the effectiveness of EIA. This culture of resistance is

From the examination of planning application documents provided on local authority websites it has been found that very many LPAs (the majority in this sample) are simply not applying the EIA Regulations where they should be and, even where projects are being screened for EIA, the tests for significance that are applied are poorly justified and in some cases in conflict with the rulings of important court judgements

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not only important for the implementation of envi-ronmental regulations but also in the ongoing project of finding adequate theories to explain, justify and

improve the role of EIA in decision-making and any

substantive role it might play in furthering sustainable

development.

Conclusions

Both the procedural and substantive theories of EIA have in common an underlying belief that EIA is a good thing and that the theories are there to explain, justify and improve EIA (Weston, 2010). The re-search reported here suggests that there is something missing from the theories on EIA and that is the ex-istence of a culture of resistance and disownment among some of those charged with its implementa-tion. It is acknowledged here that general theories on EIA are inadequate in the assessment of its effec-tiveness in the context of particular regulatory re-gimes in particular jurisdictions and that EIA can only be understood in the context in which it takes place and the culture of decision-making that frames its use. This research has only looked at screening in England and the results can only suggest that there exists a culture of resistance and disownment that has implications for EIA effectiveness. It will be for the readers of this journal to conduct their own re-search in their own jurisdictions to discover whether this theory, that a culture of resistance and disown-ment exits in the implementation of EIA regulations, holds up to wider scrutiny.

Notes

1. The Town and Country Planning (Environmental Impact Assessment) Regulations 1999 (as amended).

2. CeC (1997). 3. At the time of writing the UK Government were consulting on

new consolidating EIA Regulations. The draft regulations do not affect any of the arguments or interpretations on screening discussed in this paper. The main changes proposed include a provision that LPAs must provide a written statement of a neg-ative screening decision, whereas the 1999 Regulations only required a statement for a positive screening opinion.

4. See in particular Gillespie v First Secretary of State and Bell-way Urban Renewal [TLR 7/4/2003] and DEFRA v Alford [2005] Env. L.R 960.

5. http://www.communities.gov.uk/publications/planningandbuild ing/letterenvironmentaljudgement.

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screening for environmental impact assessment projects in england: what screening?

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