Screening opinion or a Secretary of State direction

A screening opinion comes from the local planning authority. A screening direction comes from the Secretary of State and binds the authority. On a borderline Schedule 2 scheme the choice between screening opinion or screening direction decides whether you spend the next six months preparing an Environmental Statement, so it is worth understanding both routes before you send the first request.

Both sit in the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. Schedule 1 development requires environmental impact assessment automatically. Schedule 2 development requires it only where it would have likely effects on the environment that are, in the language of the Regulations, significant, judged against the selection criteria in Schedule 3.

What a local screening opinion decides

A prospective applicant asks the authority for a screening opinion before submitting an application, providing a plan identifying the land, a description of the development and its possible effects, and any information on how adverse effects would be avoided or reduced.

The authority has three weeks to adopt an opinion, extendable by agreement in writing. The opinion has to be reasoned, which means it must engage with the Schedule 3 criteria: the characteristics of the development, its location, and the type and characteristics of the potential impact. A one-line conclusion with no reasoning is challengeable.

An opinion that the proposal is not Environmental Impact Assessment development lets you submit an ordinary application. An opinion that it is means an Environmental Statement prepared by competent experts, a 16-week determination period and a different order of cost.

Both outcomes carry risk. A negative opinion can be challenged by a third party. A positive one can be challenged by you.

When a direction can be sought

The Regulations allow a request to the Secretary of State for a screening direction in defined circumstances: where the authority has failed to adopt an opinion within the period, and where the authority has adopted an opinion that the development is environmental impact assessment development. The Secretary of State can also make a direction without a request.

A direction binds the authority. That is the whole point of it: you are not appealing the opinion so much as replacing it with a decision from a different decision-maker.

The Secretary of State is expected to make the direction within three weeks of receiving the request, or a longer period where that is reasonable. In practice complex requests take longer, and there is no appeal against the direction itself.

Grounds worth running

A direction request is not a second bite at the same argument. It works where you can show that the authority's reasoning misapplied the Regulations, and the recognisable grounds are these.

• The authority treated a Schedule 2 threshold as though exceeding it required assessment automatically, rather than as a trigger for screening.
• The reasoning did not engage with the Schedule 3 criteria, or engaged with only one of them.
• The authority took account of effects that mitigation built into the scheme would avoid, without addressing that mitigation.
• The authority relied on cumulative effects from schemes that are speculative rather than committed.
• The opinion gave no reasons capable of being understood.

Weak grounds are disagreement about planning judgement, and the argument that the cost of an Environmental Statement is disproportionate. Neither is a basis for a direction.

Timescales and the effect on programme

The programme point that matters more than any of these is the survey calendar. A positive screening in October means ecology fieldwork cannot start properly until the spring, whatever the Environmental Statement timetable says. That is the real cost of a screening dispute, and it is why an early request beats a late one.

Judicial review exposure

Screening decisions are reviewable, and they are reviewed. The risk sits in both directions.

If you obtain a negative screening opinion or direction and proceed, an objector may challenge it, and a successful challenge after permission is granted can quash the permission. The exposure is greatest where the opinion was thin, so a reasoned negative opinion that engages with Schedule 3 properly is protection for the applicant as much as for the authority.

If you are refused and choose not to challenge, the alternative is to prepare the Environmental Statement. That is often the commercially sensible answer even when the screening decision looks wrong, because a quashed permission two years into a scheme costs more than an Environmental Statement.

Where you do challenge, the shortened time limit for planning judicial review means the decision has to be made quickly. Get advice in the first fortnight.

Strategy on a borderline scheme

What works, in rough order.

1. Screen early, before the design is fixed, so that mitigation can be built in and described in the request.
2. Write the request as though it were the reasoning: set out the Schedule 3 criteria and address each one. Authorities under pressure adopt the applicant's reasoning when it is good.
3. Describe embedded mitigation clearly, and distinguish it from mitigation you are offering to secure by condition.
4. Where the authority indicates a positive opinion is coming, ask what would change its view before it is adopted.
5. If the opinion comes back positive and the reasoning is defective, weigh a direction request against the programme. Three weeks costs little. A quashed permission costs a great deal.
6. Consider a voluntary Environmental Statement where the scheme is borderline on its facts, the site is sensitive, and the assessment work would be done anyway.

That last option is unfashionable and it deserves more attention than it gets. Nobody enjoys volunteering for a longer determination period. Much of what an Environmental Statement contains, ecology, noise, air quality, transport, heritage and landscape, will be commissioned for a major application in any event. The incremental cost is the coordination, the non-technical summary and the formal structure. A Preliminary Ecological Appraisal and the other baseline studies do the heavy lifting either way.

And an Environmental Statement removes the challenge route entirely, which on a contested site is worth something.

One further point on sequencing. A screening request describes the development, so the description has to be wide enough to cover what you will eventually apply for. Screen a scheme of 80 dwellings and then apply for 120 and the screening no longer covers the application, which hands an objector an obvious argument. Where the quantum is uncertain, screen the upper end of the range and say so in the request.

The same applies to the red line. Adding land for an access or a drainage outfall after screening changes the location characteristics the authority assessed, and a location in or near a sensitive area is one of the Schedule 3 matters. Fix the red line before screening if you can, and re-screen if it moves materially.

Browse the full report index to see what an environmental impact assessment scheme would draw in, or read biodiversity net gain against ecological impact assessment for a related comparison. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This is general guidance rather than legal advice, so check the position with your local planning authority or a qualified professional before relying on it.