February 26th, 2024 by James Goudie KC

Local authorities are relevant authorities for the purpose of the consolidating EU based Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, S.I. 2017/572. Regulation 4 prohibits granting consent for an “EIA development”, without consideration of “environmental information”, as defined. Regulation 5 relates to the EIA process; and Regulation 6 relates to when development is EIA development. In R (Boswell) v SoS for Transport (2024)EWCA Civ 145 the Court of Appeal held, dismissing Dr Boswell’s appeal from Thornton J, that the SoS had not erred in granting development consent for three road improvement schemes by failing to conduct any lawful cumulative assessment of the combined carbon emissions from the three schemes, each of which would result in an increase in carbon emissions. There was no hard-edged provision in the relevant legislation, nor any relevant principle of law, that had been breached by the SoS. Nor was his decision irrational. The Court of Appeal observed, at paragraph 50, that: “…carbon emissions have no geographical boundary, with the consequence that their impact is not confined to the local area, but is felt uniformly across the globe. In this important respect, they differ from other environmental impacts, (such as noise, pollution, dust or risk of flood) which must be considered in an EIA. Impacts of the latter type are by their nature geographically confined, and it therefore makes sense to consider them in conjunction with other similar impacts to see if their cumulative impact may be greater than the sum of the individual impacts measured in isolation.”

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