How to request an EIA screening opinion

Anyone can ask a council for an EIA screening opinion request, and the right is not reserved to the person proposing the development. Regulation 6 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 lets a developer ask before applying, and regulation 5 requires the authority to adopt a screening opinion where it has to decide whether a planning application before it is EIA development. If you are a neighbour or a parish council and you think a scheme needs an environmental statement, the practical move is to write to the authority asking it to screen the application, setting out why the development falls within Schedule 2 and why its environmental effects are likely to be serious enough to need an environmental statement.

The authority has three weeks from receiving the request, or longer if it agrees an extension in writing with the person who asked. A screening opinion is a short, reasoned decision, and it is published on the planning register.

What a screening opinion decides

A screening opinion answers one question: is this development EIA development. It does not decide the planning application, and it does not say whether the scheme is acceptable.

Development is EIA development if it falls in Schedule 1, where an environmental statement is always required, or if it falls in Schedule 2 and is likely to have significant effects on the environment by virtue of factors such as its nature, size or location. That phrase, likely effects of that order, is the whole test. Schedule 1 covers the largest projects: crude oil refineries, large thermal power stations, certain waste disposal installations, major infrastructure. Most contested local schemes sit in Schedule 2.

Where the opinion is that the development is EIA development, the applicant must produce an environmental statement, and the determination period extends to 16 weeks. Where it is not, the application proceeds normally and any environmental information is supplied through the ordinary supporting documents. An environmental statement is a formal document under the Regulations with its own content requirements, and environmental information supplied through ordinary reports is not a substitute for it.

An environmental statement under the 2017 Regulations must be prepared by competent experts, so this is not a document a developer can assemble without specialist input. A drafted Environmental Impact Assessment can structure the work, and the statement itself has to come from competent experts.

Who may request one

Three routes exist, and they are not equally well known.

A prospective applicant may request a screening opinion before submitting, under regulation 6, by supplying a plan of the site, a description of the development and a description of its likely environmental effects. This is the route most commonly used, because developers want certainty before spending money.

The authority must adopt a screening opinion of its own motion where an application for Schedule 2 development is made without an environmental statement and the authority has not already screened it. That duty exists whether or not anybody asks, and it is the hook a third party uses.

A third party, including a neighbour, a resident group or a parish council, can write to the authority asking it to exercise that duty and to adopt an opinion. There is no form and no fee. In practice a letter addressed to the case officer and the head of development management, citing regulation 5 and the Schedule 2 category you say applies, is what gets a response.

Where the authority declines to screen or screens negatively, the Secretary of State can be asked to make a screening direction, which overrides the local opinion.

Information the authority needs

A request that does the authority's work for it is far more likely to produce a considered opinion. Four things to include.

First, the Schedule 2 category and threshold, quoted. Schedule 2 sets a description of development and an applicable threshold or criterion for each category, and you need to say which one the scheme falls within and how it meets the threshold. An urban development project, for instance, has thresholds based on site area and floorspace.

Second, the location sensitivities. Schedule 3 lists the selection criteria the authority must take into account, including the existing and approved land use, the relative abundance and quality of natural resources, the absorption capacity of the natural environment, and designated areas. Name the designations: a Site of Special Scientific Interest, a conservation area, Flood Zone 3, an Air Quality Management Area, ancient woodland.

Third, the effects you say reach that threshold, with a reason for each. Significance comes from the interaction between the development and the receiving environment rather than from the size of the development on its own.

Fourth, any cumulative effect. Schedule 3 requires the cumulation with other existing or approved development to be considered, and this is the ground most often missed. Three consented schemes on adjoining land, each modest on its own, can together produce the effect that makes screening bite. Whether neighbours get a second say when such a scheme is amended is a separate question, answered in are neighbours reconsulted on amended plans.

Thresholds and the indicative criteria

Schedule 2 thresholds are entry gates rather than tests of significance. A scheme above the threshold still has to be assessed for its likely effects, and a scheme below the threshold is not EIA development at all, however unwelcome it is.

The Planning Practice Guidance on environmental impact assessment gives indicative thresholds and criteria that help officers judge each Schedule 2 category. They carry weight because officers use them, and they are not binding. Quoting them accurately in a request is more persuasive than asserting that a scheme is obviously too big.

Mitigation can be taken into account in screening, which surprises objectors. An authority may conclude that the test is not met because of measures designed into the scheme, provided those measures are certain enough to rely on.

The time limit for a response

The authority must adopt and send its screening opinion within three weeks of the request, or within such longer period as it agrees in writing with the person who made the request. Where the authority asks for further information, the clock restarts from receipt of that information.

If the authority fails to respond, or adopts an opinion that the development is not EIA development, the person who asked can apply to the Secretary of State for a screening direction. That request should be made promptly, because the planning application will continue to be processed in the meantime and a decision issued before the direction arrives changes the position entirely.

Keep the correspondence. A dated request, a dated acknowledgement and the three week date are the facts that matter if the process has to be challenged later.

Challenging a negative screening opinion

A screening opinion is a decision of the authority and can be challenged by judicial review, on the usual public law grounds rather than on the merits. The grounds that succeed tend to be failure to take Schedule 3 criteria into account, failure to consider cumulative effects, inadequate reasons, or reliance on mitigation that was not certain enough.

Two practical constraints. Judicial review has a short time limit, and in planning cases claims must be filed promptly and in any event within six weeks. And the court reviews the lawfulness of the reasoning, so a claim that amounts to disagreeing with the authority's judgement will fail.

The cheaper route is the screening direction request to the Secretary of State, which costs nothing and reviews the substance. Most objectors should exhaust that before thinking about litigation.

Using the opinion in an objection

Whichever way the opinion goes, it is useful material for an objection.

A positive opinion means an environmental statement, a 16 week determination period, a scoping stage you can comment on, and a much fuller evidence base to respond to. It also means the authority has formally accepted that the test is met, which is a finding you can quote.

A negative opinion is not the end of the argument. The reasons given usually identify the effects the authority considered and the mitigation it relied on, which tells you exactly where to direct your objection: if the opinion rests on a drainage strategy or an ecological mitigation plan, those documents become the target. Environmental effects remain material considerations whether or not an environmental statement is required, so an objection on noise, air quality or ecology stands on its own.

Write the objection to the policies and the evidence rather than to the screening outcome, and read the decision notice carefully when it arrives, as set out in reading a decision notice as a neighbour. If you want to see which technical reports a scheme of that type would normally be expected to supply, the report types by category give a reasonable checklist to measure a submission against.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it, and note that an environmental statement must be prepared by competent experts under the EIA Regulations 2017.