Burridge v Breckland at the Court of Appeal: of salamis and EIA

In Burridge v Breckland, the Court of Appeal (permission to appeal with the Supreme Court is under consideration) had to consider the all too familiar issue of ‘salami’ projects: developments which singularly do not meet the thresholds to require an EIA but which do when joined together. Splitting needs to be considered carefully, for it may disguise an attempt to circumvent EIA requirements. On the continent, it is referred to as ‘saucisonner’.

In the case at issue, planning permissions was granted, subject to conditions, to Greenshoots Energy Ltd for a biomass renewable energy plant, and for a combined heat and power (‘CHP’) plant on nearby land. The CHP plant would be fuelled by biogas produced by the renewable energy plant.  In an earlier (later amended) stage of the application, the two plants were effectively joined: the CHP plant was moved ‘to have the environmental advantage of moving a part of the installation farther away from the village [ ].’ An underground gas pipeline is to carry the fuel between the two sites.

Appellant requested that the permits be quashed, on the basis that no EIA, indeed not even screening was carried out vis-a-vis the amended scheme.

The ECJ has unequivocally rejected inter alia in Ecologistas en Acción (referred to by the Court of Appeal), the artificial splitting of projects to circumvent EIA requirements:

as the Court has already noted with regard to Directive 85/337, the purpose of the amended directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the amended directive (see, as regards Directive 85/337, Case C-392/96 Commission v Ireland [1999] ECR I‑5901, paragraph 76, and Abraham and Others, paragraph 27). [Case C-142/07 Ecologistas en Acción-CODA v Ayuntamiento de Madrid, [2008] ECR I-6097, paragraph 44]

In the case at issue, the splitting may not have been artificial, but it was certainly a reality. Hence at the least a renewed screening ought to have been carried out.  A consequential further issue related to the impact of the earlier screening, which had been carried out vis-a-vis the unamended, initial application, and which had decided against the need for an EIA. Was this to have any impact on the Court of Appeal’s decision? Here, (the majority of) the CA thankfully adopted the only sensible approach: separation of powers. Even if it might be unlikely that a different screening opinion were to be taken vis-a-vis the amended application, that is for the local authority to consider: not the court.

The two decisions were quashed.

Should the Supreme Court consider the issue, I shall of course revisit in due course.

Geert.

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  1. #1 by Geert Van Calster on 23/08/2013 - 12:43 PM

    Reblogged this on blog.coleurope.eu.

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