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How will the development sector feel the ‘impact’ from changes proposed to the EIA Regulations?

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28/03/2017

In 2014, the European Parliament adopted a revised version of the Environmental Impact Assessment (EIA) Directive (2014/52/EU) (the Directive).  This came with the requirement for the Directive to be transposed into member states’ domestic legislations by 16 May 2017.  Wales and Scotland consulted on the changes relatively quickly, but only from late December 2016 to February 2017 did the Department for Communities and Local Government (DCLG) consult on revising the existing EIA regulations.   In light of the responses received, DCLG will take forward some revisions to give effect to the Directive’s key provisions.  But what does this mean in practice?  What is the likely impact for planning and development proposals?  Walker Morris’ Planning & Environment team consider the amendments proposed.

Key Reforms

DCLG has decided to only introduce minor changes, taking the view that the existing regulations already met the Directive’s requirements in many areas.

The revised legislation will comprise the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017. Only draft regulations have been released to date, but provide an indication of the likely changes.  Some amendments are administrative or procedural, having little practical impact.  The main elements of the Directive to be adopted in part or full are as follows.

  • Addition of a definition of the EIA process: The Directive’s definition of the EIA process is to be included in the regulations. While the definition now includes human health, alongside cultural heritage and landscape for instance, it is not comprehensive. Transport, for instance, is not included. The list is not exclusive or prescriptive though – as Article 5(1) of the Directive and other guidance includes the catch-all provision that information provided should “include at least…a description of the likely significant effects of the project on the environment”. As is already the case, the detail is therefore left to be resolved in respect of each individual screening or scoping exercise.
  • Changes to the circumstances when a project can be exempt from the Directive’s requirements: Projects with defence or civil emergency response as their sole purpose may be exempt.
  • Introduction of coordinated procedures for projects that are subject to the Directive as well as the Habitats or Wild Birds Directives: There is to be a coordinated approach for projects involving compliance with these three directives. It is not yet clear who will be the coordinating authority. In reality, as EIA is usually already closely coordinated with Habitat Regulations Assessments (where both are required) the impact of this is likely to be minimal.
  • Changes to the list of environmental factors to be considered: It seems the emphasis is now on “likely significant effects” on the environment, rather than needing to take into account any ‘less than significant’ effects. Species protected under the Habitats and Wild Birds Directives are clearly now a focus, but not to the exclusion of other species – as the reworded UK regulations require assessment of biodiversity as a whole. Additional matters are also outlined that are to be considered: climate; land and human health; and projects’ vulnerability to major accidents or disasters. While Environmental Statements (ES) could become lengthier as a result, it is hoped the changes will ensure greater focus on significant effects only and more detailed screening.
  • Clarification of screening options and alterations to the information requirement: DCLG are retaining the current mandatory 21 days in which local authorities have to make a screening decision, unless an extension is agreed in writing. The maximum allowed by agreement will be 90 days. Additional supporting information is to be provided when a screening application is made. This will mean more work in advance of submitting an EIA, with early assessment and modelling to ensure certainty. However, in the longer-term, such ‘front loading’ may save time and mean a development can avoid EIA altogether – where successful mitigation is demonstrated.
  • Alterations to the information required in the ES: Impacts on or arising from human health; natural disasters; the use of natural resources; and quantity of materials are all factors now to be considered. In reality, the ‘new’ elements are already included in most ES’s. DCLG explains this as simply being a renaming of the issues.
  • Requirement for ES to be based on a Scoping Opinion (where applicable): If a voluntary scoping has been sought, the subsequent EIA must adhere to the Scoping Opinion (SO) received. If the final EIA does not do so, it will not comply with the Directive. It does seem this may limit the ability to make later scheme changes, at least without the need to undertake fresh or multiple scoping exercises.
  • Use of competent experts: EIAs are to be undertaken by those that the competent authority / decision-maker believes have sufficient expertise to ensure the completeness and quality of the ES. The Statement will therefore need to include a statement outlining how the requirement for sufficient expertise has been met. It seems authors will therefore need to be verified as having suitable expertise, or else there could be refusal of an EIA’s suitability by the local authority.
  • Greater information to be given in decision notices and as part of decision-making procedures.
  • Conflicts of interest to be avoided.
  • Monitoring of significant adverse effects: Any grant of development consent should now include, where appropriate, monitoring measures. In reality, planning conditions, legal agreements and other development documentation generally already includes mitigation and monitoring measures. This is therefore not likely to have a substantial impact in practice.
  • Introduction of penalties: DCLG has long-held that the existing enforcement provisions are sufficient to meet the Directive’s requirements. No further systems or schemes for penalties have therefore been introduced. Authorities have the current system of stop notices, breach of condition notices and the possibility of court injunctions at their disposal.

Scope

In explaining the changes ‘selected’ from the Directive, DCLG explained: “In transposing the amendments to the Directive, our view at the outset is that there is merit in retaining, as far as practical, the existing approach to environmental impact assessment in England as it is well understood by developers, local planning authorities and others involved in the procedures”.  The amendments being made have therefore been referred to as what DCLG “consider to be the minimum changes necessary to the existing regulations in order to bring them into line with the amended Directive” and will “minimise familiarisation costs and business uncertainty”.

It is likely Article 50 and Brexit will be triggered before the Directive’s implementation deadline of 16 May 2017. However, it is unlikely the UK will have actually left the EU by that date, so the Directive will still have to be transposed into domestic legislation.

Practical Points

Screening

The screening process involves the local authority or Secretary of State confirming whether or not an EIA is required. This has been strengthened and clear attempts made to standardise the information required:

  • Applicants must submit formal screening reports with their applications, if an opinion is requested prior to the submission of a planning application. If the local authority feels a proposal may be subject to EIA, it can request a screening report from the applicant where one has not been submitted. Submission of screening reports with (or before) an application will thus avoid delays.
  • The local authority can now decide that an application is outside the EIA regime if mitigation measures are proposed to avoid significant effects. It is hoped this will encourage applicants to consider mitigation earlier on in the development process.
  • The thresholds and types of project that require an EIA have not altered. However, applicants will now need to include information considering the impacts on waste; use of natural resources, risks from major accidents or disasters (including flooding); and cumulative effects. Both construction AND operational phases are to be taken into consideration.
  • More robust and detailed explanations are to be given in screening decisions and precise mitigation measures outlined in the cases of negative screening opinions.
  • Local authorities have 21 days to give screening opinions and the Secretary of State will have three weeks. Both have up to a possible maximum of 90 days to make a decision, subject to agreement and unless exceptional circumstances apply.
Scoping and ES’s

A proposal that is subject to EIA, can undergo voluntary ‘scoping’ – that is, the authority or Secretary of State confirms the required contents of the ES.  Scoping will still be voluntary.  However, going forward:

  • if a SO is obtained, the ES must now be based on the latest SO
  • the ES must be prepared by a competent expert, as judged by the decision-maker, and the Statement should confirm this has been complied with and
  • the various new elements noted above must be considered and assessed.
Consultation and Publication
  • the ES and any ‘further information’ must be published electronically and on the local authority’s website
  • statutory consultees and members of the public are to be allowed 30 days to comment on any environmental information. This is an extension from the current 21-day consultation period.
Decision-Making and Monitoring

In the future, planning permissions must include a greater level of detail and consideration towards potential environmental impacts. Permissions will need to incorporate:

  • any conditions that specifically relate to the development’s likely significant environmental effects
  • clear conclusions regarding significant environmental effects envisaged and
  • if appropriate, measures to monitor a development’s impact, along with potential approaches to mitigation and remediation – from construction, to completion, and beyond.

Comment

One concern is how confident local planning authorities will be in putting the new regulations into practice when they are making screening and scoping decisions after May 2017. For landowners, developers or businesses with EIA applications pending, it may be advisable to submit these as soon as possible.  However, proposed developments that are ‘wavering’ on the threshold of needing an EIA may be at an advantage following the changes – particularly the possibility for a development to avoid needing an EIA if appropriate details of proposed mitigation are provided.

Over the years, the EIA process has opened the way for an increase in judicial review challenges to planning permissions, on the basis of EIA procedures not having been robustly or conscientiously followed. With the new regulations introducing more prescriptive requirements, the potential for scrutiny and challenges may increase.  Applicants and local authorities therefore need to quickly understand and ‘get on top’ of the changes to avoid the risk of delays and successful challenges.  In the main though, it seems unlikely the new regulations will dramatically alter the way EIA works in practice.

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