Why screening thresholds fall away in a sensitive area

In a sensitive area the Schedule 2 thresholds stop doing any work. The definition of Schedule 2 development in regulation 2(1) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 is development of a description in column 1 of the table where either any part of it is to be carried out in a sensitive area, or an applicable threshold or criterion in column 2 is met or exceeded.

Those two routes are alternatives, which is the whole mechanism. Cross a threshold and you are in Schedule 2. Sit in a sensitive area and you are in Schedule 2 whatever the numbers say, because the eia sensitive area threshold is not a threshold at all.

What the regulations mean by a sensitive area

The term is defined, and the definition is narrower than the everyday meaning of the words. Regulation 2(1) lists the categories, which include land notified as a site of special scientific interest under section 28 of the Wildlife and Countryside Act 1981, National Parks, the Broads, World Heritage Sites, scheduled monuments, areas of outstanding natural beauty, now known as National Landscapes, and European sites designated for habitats and species.

Read the current consolidated regulation rather than a summary of it, including this one. The list has a precise statutory form and the consequence of getting it wrong runs in both directions, so check each designation against the wording before you either rely on a threshold or abandon it.

A second point about the drafting. The test refers to the description in column 1, so a development still has to be of a listed description to be caught. The categories relevant to most development are urban development projects, which include housing and most mixed schemes, infrastructure projects, and the various industrial and extractive descriptions. A proposal that falls outside every column 1 description is outside Schedule 2 wherever it is.

Designations that are not sensitive areas

This is where most of the mistakes happen, and they go the cautious way. Several designations that dominate planning practice do not appear in the definition.

So a scheme of eight houses in the middle of a large town conservation area does not become Schedule 2 development by virtue of the conservation area. It may well need a heritage assessment, an archaeological desk study and an ecological appraisal. It does not need a screening opinion unless it crosses a threshold.

And the reverse trap is worse. A scheme of four houses on a paddock that clips the edge of a notified site of special scientific interest is Schedule 2 development, needs screening, and cannot lawfully be granted permission until screening has happened. Four houses. The threshold is irrelevant.

Any part of the development, including the access

The phrase "any part of that development" does a great deal of work. It catches sites that straddle a designation boundary, and it catches development outside the designation whose access, drainage outfall, visibility splay works or construction compound fall inside it.

Draw the red line and then overlay the designations, rather than the other way round. A housing scheme on unconstrained land that proposes a new access across a verge within a National Park boundary has part of the development in a sensitive area, and the screening obligation follows.

Watch three details. Scheduled monuments are often small, irregular and unmarked on the ground, so the official spatial data rather than the site visit decides the answer. National Landscape and National Park boundaries frequently follow historic parish lines rather than physical features. And European site boundaries can sit offshore or along a river, catching outfalls and crossings.

What the screening request has to carry

Being in a sensitive area changes the content of the request as well as the need for one. The Schedule 3 selection criteria already require the environmental sensitivity of the location to be considered, covering the abundance, quality and regenerative capacity of natural resources in the area and the absorption capacity of the natural environment.

Four things to put in a request for a scheme in or adjoining a designation.

1. The designation identified precisely, with the citation or list entry reference and the distance from the development.
2. The interest features of that designation, taken from the citation rather than described generically, because an SSSI notified for its invertebrate assemblage raises different questions from one notified for its geology.
3. The pathway by which an effect could occur, or the reasoned absence of one. Hydrological connection, dust, lighting, recreational pressure, nitrogen deposition or direct land take.
4. Any mitigation relied on, with the mechanism by which it will be secured, because mitigation that is not certain cannot be weighed.

A Preliminary Ecological Appraisal often produces most of this material, and where a scheduled monument is involved an Archaeological Desk-Based Assessment does the same job for the heritage interest.

Where a negative opinion remains available

Being Schedule 2 development is not the same as being EIA development, and the sensitive area route does not change that. The authority still asks whether the development is likely to have significant effects on the environment by virtue of factors such as its nature, size or location, and it can conclude that it is not.

Small schemes in designated areas are screened out regularly, and properly so. A single dwelling on a serviced plot inside a National Park, replacing an existing building, with no hydrological connection to anything and no land take from a habitat, is unlikely to generate effects of that order. What matters is that the authority reaches and records that conclusion with reasons, rather than nobody asking the question.

The distinction between a householder proposal and development of a new dwelling matters here too, and the householder or minor single dwelling line is the same boundary that decides several other requirements.

What happens if screening is skipped

A planning permission granted for Schedule 2 development without screening is defective, and the defect is in the authority's decision rather than in the application. That sounds like somebody else's problem until you are the developer holding the permission.

Two exposures. Judicial review, where a claim concerning a decision under the planning Acts generally has to be brought within six weeks, with the risk that the permission is quashed. And the discovery problem, where a purchaser's or funder's solicitor spots the absence of a screening opinion during due diligence and the transaction stops until it is resolved, which on an implemented permission may not be possible.

Both are avoidable with a request that costs a fraction of either. An Environmental Impact Assessment must be prepared by competent experts where one is required, and the screening request itself is a planning document rather than a technical one.

Checking designations before relying on a threshold

Do this before the fee quote, not after the layout.

Take the red line, including access and off-site works, into the public designation datasets. The Defra multi-agency geographic information service covers statutory nature conservation designations and National Landscapes. The planning data service carries boundary datasets for a growing list of designations. The National Heritage List for England gives scheduled monument entries with their mapped extents. Then record the search, with the dataset name and the date, in the screening request.

Illustrative example: fourteen dwellings on a 0.9 hectare paddock, with an existing field access to be widened across a verge that lies inside a National Landscape boundary. Unit count below the Schedule 2 indicator, site area below five hectares, and nonetheless Schedule 2 development because part of the works sits in a sensitive area. The right move is a screening request with the National Landscape purposes addressed, a landscape note, and a reasoned case that no effect of that order arises.

Browse the 66 report types to see which environmental documents a constrained site needs. This is general guidance, not legal advice, so check the position with your local planning authority or a qualified professional before relying on it.

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