Land

Environmental impact assessment - development not satisfying conditions requiring assessment - inspector not obliged to refer development to Secretary of State under regulations - regulations correctly transposing Council directiveBerkeley v Secretary of State for the Environment, Transport and the Regions and Another: CA (Schiemann and Kay KJJ and Sir Murray Stuart-Smith):29 June 2001The applicant, who opposed an application for planning permission for the proposed development of a block of flats, applied under section 288 of the Town and Country Planning Act 1990 to quash a decision of an inspector to refuse to refer the planning application to the Secretary of State for him to consider whether to make a direction that an environmental impact assessment (EIA) should be carried out, even if the conditions set out in schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 were not satisfied.

Mr Duncan Ouseley QC, sitting as a deputy High Court judge, dismissed the appeal.

The applicant appealed.Eleanor Sharpston QC and Richard Harwood (instructed by Richard Buxton, Cambridge) for the applicant; Richard Drabble QC and James Maurici (instructed by the Treasury Solicitor) for the Secretary of State; Anthony Dinkin QC and Richard Ground (instructed by Gellhorn Cooney Laugharne, Guildford) for Berkeley Homes.Held, dismissing the appeal, that the regulations complied with and correctly transposed Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC, and as construed by the Court of Justice of the European Communities; that the development did not fall within schedule 1 to the regulations and was not in a sensitive area as defined, the site covered less that 0.5 hectare and the Secretary of State had not made a direction under regulation 4(8); that the inspector could not therefore have concluded that the development might require an EIA under the regulations since it did not satisfy any of the conditions requiring an EIA; and that regulation 9(2) did not oblige a planning inspector to refer every application for planning permission to the Secretary of State where a plausible argument for doing so was raised.