A benefit of the current EIA Regulations is the ability to include mitigation at the screening stage to ensure that EIA is undertaken only for those projects that are likely to have significant effects on the environment. Therefore, if it can be demonstrated that the proposed development includes measures to avoid, or prevent, what might have otherwise been significant environmental effects, EIA is not required.
Lichfields has successfully taken this approach to EIA screening opinion requests, committing to standard mitigation such as a Construction Environmental Management Plan, Landscape and Ecology Management Plan etc, as well as project-specific mitigation measures such as the installation of a new Sewage Treatment Plant and a Landscape Strategy that responds to particular species within and around a site.
Whilst this can justify that EIA is not required, in order to reach this point it may be necessary to frontload assessment work to establish a robust evidence base. This can be challenging to early project budgets, although it should not generate abortive work, as standalone technical reports will likely still be required on specific issues. Should prior survey work not be possible a ‘worst-case’ scenario could be adopted, although this may commit the project to mitigation over and above what is necessary.
Ultimately, however, a commitment to mitigation measures at the EIA screening stage can overcome the requirement for EIA to be undertaken for a project.
Recently the Secretary of State successfully defended a legal challenge against his decision that the redevelopment of a disused sports complex was not EIA development. The Claimant, a local resident, submitted three challenges, one of which was that “The Defendant placed undue reliance upon conditions in an attempt to remedy the adverse environmental effects which were likely to arise from the proposal”.
In order for that proposal to not comprise EIA development all parties involved agreed that a contaminated land condition would need to be attached to any grant of planning permission, requiring further land contamination investigation(s) to be undertaken and approved by the Council prior to the commencement of development, with subsequent measures/mitigation/validation as required. The screening opinion recognised that there were concerns with contaminated land and that there was moderate risk from ground gas and the potential for pollution to surface and groundwater.
A key question for the Court was whether the development would be likely to have significant effects on the environment. In defining this term the judgement refers to past rulings where ‘likely’ is real risk and not probability, although it is acknowledged that an exercise of judgement or opinion is still involved.
It is the decision maker’s role to judge whether the development is likely to have significant environmental effects. In this case the ruling found that the challenge was unsupported by evidence, given that the Secretary of State’s screening direction assessed the risks and there were no objections raised by the Environment Agency to the Geo-Environmental Ground Investigation report. It was ruled that the Claimant did not establish an arguable justification that these conclusions were wrong.
Whilst this case was considered against the superseded 2011 EIA Regulations (which did not specifically refer to the application of mitigation at the EIA screening stage) the current EIA Regulations do allow for this, which arguably strengthens the role of mitigation in determining whether a project comprises EIA development.
The proposed mitigation should, however, be supported by evidence to allow the local planning authority to reach a reasoned conclusion on the need or otherwise for EIA and to ensure that the applicant is not committing to overly onerous and potentially costly mitigation in order to minimise the risk of challenge.
 Kenyon, R (On the Application Of) v Wakefield Council & Ors  EWHC 3485 (Admin) (18 December 2018)
© Cultura Creative (RF) / Alamy Stock Photo
The Deptford Project has been announced as winner of the ‘Best Heritage Project’ in London at the London Planning Awards!
What a fabulous finale for Lichfields, for a project that has transformed a run-down part of Deptford, providing housing, commercial units and a new market, and bringing life back to a listed railway structure that was on Historic England’s buildings at risk register.
Working on behalf of U+I Group plc (formerly Cathedral Group), Lichfields has provided planning inputs into the Deptford Project from the start, securing the original planning permission, and conservation area and listed building consents, discharging conditions and then obtaining permissions and consents for the numerous subsequent details and changes needed to meet the evolving requirements of the development.
The Deptford Project comprises a number of very different elements of development that work together to create a successful regeneration area in the heart of Deptford.
Whilst the Rogers Stirk Harbour + Partners-designed 121-unit apartment building (now known as Tinderbox House) is an obvious key feature of the project, providing a modern and vibrant residential development with a roof-top garden, it is the Grade II Listed Carriage Ramp running proudly alongside the apartment building that makes this development unique.
The Carriage Ramp was built in 1832 for providing rolling stock and private carriage access to the Deptford Station and Railway Viaduct, which is itself the longest listed structure in the UK. It is hard to imagine that the Ramp was constructed in an open field, although in the subsequent 20-25 years it was enveloped by the expansion of London, with new terraced housing backing directly onto it.
The open arches, which reduce in height beneath and along the length of the Ramp, were originally used for storage in association with railway works, although they were later used by private companies for heavy goods storage. Over the years, a lack of investment in the up-keep of the Ramp and the removal of most of its east-west section saw it fall into disrepair. The Carriage Ramp was always important though, as the last remaining of three such ramps in London.
It was The Deptford Project that saved the structure, providing the investment and careful renovation needed to bring the Ramp back to life. This was not without its challenges but the end product, resulting in this award, speaks for itself. The Ramp and its new east-west section provide access to Deptford Rail Station whilst businesses occupy the arches once again.
In front of the Carriage Ramp is the new Deptford Market Yard, providing public realm and a new market area with new connectivity through the site and beneath the Carriage Ramp, and with improved legibility provided by the implementation of a comprehensive wayfinding strategy.
The development also includes St Paul’s House, which fronts Deptford High Street and provides 8 apartments, 3 town houses and 2 restaurants.
I may be biased but I do think that the Deptford Project is very deserving of its title of ‘Best Heritage Project in London’, given at the London Planning Awards. I will miss working on such an exciting development; however it is now time to let the development do the talking as it becomes a fully integrated part of Deptford.
Indeed it is already bringing benefits to the area by acting as a catalyst for further regeneration and investment. Whatever happens, the Grade II Listed Carriage Ramp will be around to see it.
Image credit: Deptford Market Yard