Environmental Impact Assessment regulations in force on 16 May 2017

Environmental Impact Assessment regulations implementing EIA Directive 201452/EU came into force on 16 May 2017. These regulations materially alter the environmental impact assessment regime.

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations) which implement EU Directive 201452/EU (the Directive) came into force on 16 May 2017. We have set out below a summary of the key requirements of the EIA Regulations.

Screening

It will be mandatory under Regulation 6 of the EIA Regulations for a person making a request for a screening opinion to provide the following information:

  • a plan sufficient to identify the land
  • a description of the development including its physical characteristics, where relevant a description of demolition works, and a description of the location of the development with particular regard to environmental sensitivity of geographical areas likely to be affected
  • a description of the aspects of the environment likely to be significantly affected by the development
  • to the extent that information is available, a description of any likely significant effects of the proposed development on the environment resulting from the expected residues and emissions and the production of waste where relevant, and the use of natural resources, in particular soil, land, water and biodiversity, and
  • such other information or representations as the person making the request may wish to provide or make, including any features of the proposed development or any measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The final point above is a particularly significant new aspect to the information included in a request for a screening opinion as it allows for developments to be “screened out” as a result of mitigation measures incorporated in the proposed development which will avoid or prevent significant adverse effects on the environment.

A request to the Secretary of State for a screening direction will have to include the above information together with:

  • a copy of any notification received from the relevant planning authority requesting additional information and any response sent
  • a copy of any screening opinion received from the relevant planning authority and any accompanying statement of reasons, and
  • any representation that the person wishes to make.

A copy of a request for a screening direction must also be sent to the relevant planning authority.

A person compiling the above information must where relevant take into account results of any relevant EU environmental assessment reasonably available, and relevant selection criteria set out in Schedule 3 (Selection Criteria for Screening Schedule 2 Development) of the EIA Regulations.

A screening opinion must be adopted by the relevant planning authority or the Secretary of State as appropriate within three weeks from the receipt of a request for an opinion, or any longer period agreed with the person making the request but not exceeding 90 days from the date of the request.

There is an exception to the above time period which is that a relevant planning authority or the Secretary of State as appropriate may notify an applicant for a screening opinion that it considers that there are exceptional circumstances relating to the circumstances of the proposed development which mean that it is not practicable for it to adopt a screening opinion within the relevant time period. The notice must state the reasons justifying the extension of time and the date when the determination is expected.

Scoping

Regulation 18 of the EIA Regulations now makes it obligatory for an environmental statement to be based on the most recent scoping opinion or direction if one has been requested and issued. It remains a voluntary matter whether or not a scoping opinion is requested.

Competent Expert

Regulation 18 of the EIA Regulations introduces a new requirement that a developer must ensure that the environmental statement is prepared by a competent expert, and that the environmental statement is accompanied by a statement from the developer outlining the relevant expertise or qualifications of the expert. The EIA Regulations do not define who a “competent expert” may be however the environmental statement must be accompanied by a statement from the developer outlining the relevant expertise or qualifications of the expert. This inevitably leaves scope for challenge if it is disputed that the competent expert has relevant expertise or qualifications.

The relevant planning authority or the Secretary of State must also ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement.

Environmental Impact Assessment and Environmental Statements

Regulation 4 of the EIA Regulations sets out the factors that an environmental impact assessment must identify, describe and assess. These are the direct and indirect significant effects of the proposed development on:

  • population and human health
  • biodiversity, with particular attention to species and habitats protected under Directive 92/43/EEC(a) and 2008/147/EC(b)
  • land, soil, water, air and climate
  • material assets, cultural heritage and the landscape, and
  • the interaction between the above factors.

We note that reference to “population and human health” replaces “human beings” and that reference to “biodiversity” replaces “flora and fauna”. These terms imply that a wider set of considerations will have to be assessed.

The “significant effects” referred to above will include those arising from the vulnerability of the proposed development to major accidents or disasters that are relevant to the development. In addition to this the operational effects of the proposed development on the above factors must also be identified, described and assessed.

Regulation 18 of the EIA Regulations sets out the information that must be included in an environmental statement. This information can be summarised as:

  • a description of proposed development including information on the site, design, size and other relevant features
  • a description of the likely significant effects of the proposed development on the environment
  • a description of any features of the proposed development, or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment
  • a description of the reasonable alternatives studied by the developer, which are relevant to the proposed development and its specific characteristics, together with an indication of the main reasons for the option chosen, taking into account the effects of the development on the environment
  • a non-technical summary of the information referred to above, and
  • any additional information specified in Schedule 4 (Information for Inclusion in Environmental Statements) of the EIA Regulations relevant to the specific characteristics of the particular development or type of development and to the environmental features likely to be significantly affected by it.

Consultation

In relation to a scoping opinion a relevant planning authority or the Secretary of State as appropriate must not adopt an opinion unless it has consulted the relevant consulting bodies and it must within five weeks of receipt of an application for a scoping opinion (or longer as agreed with the applicant) adopt a scoping opinion and send a copy to the applicant.

In relation to an environmental statement a relevant planning authority or Secretary of State as appropriate must forward a copy to any relevant consulting body that has not received a copy from the applicant and the consulting body may make a representation. The consulting body must also be informed of any decision.

Also in relation to an application for planning permission which is either accompanied by an environmental statement or in relation to which an environmental statement is subsequently submitted, a period of not less than 30 days must be given for inspection of the documents from the date that notice is published in a local newspaper of the making of an application.

Coordinated assessment

Where there is a requirement to carry out a Habitats Regulation Assessment in addition to an Environmental Impact Assessment, the relevant planning authority or Secretary of State as appropriate must ensure that the assessment of both are coordinated.

Decision

Regulation 29 of the EIA Regulations sets out the information that must accompany a decision on an application or appeal in relation to which an environmental statement has been submitted. This is to include:

  • Information regarding the right to challenge the validity of the decision and the procedures for doing so.
  • If the decision is to grant planning permission or a subsequent consent:
    • a reasoned conclusion on the significant effects of the development on the environment
    • any conditions to which the decision is subject which relate to the likely significant environmental effects of the development on the environment
    • a description of any features of the development and any measures envisaged in order to avoid, prevent, reduce and, if possible, offset likely significant adverse effects on the environment, and
    • any monitoring measures considered appropriate.
  • If the decision is to refuse planning permission or a subsequent consent, the main reasons for refusal.

In terms of monitoring, Regulation 26 of the EIA Regulations allows the relevant planning authority, Secretary of State or inspector as appropriate to consider whether any existing monitoring arrangements carried out in accordance with an obligation under the law of any part of the UK, other than the Directive, are more appropriate than imposing a monitoring measure. This means that it is not a given that conditions will be applied to a planning permission or obligations set out in a Section 106 planning obligation to require monitoring measures to be implemented.

Regulation 26 of the EIA Regulations requires that the relevant planning authority or Secretary of State or inspector as the case may be must not grant planning permission or a subsequent consent for EIA development unless they are satisfied that the reasoned conclusion is up to date.

Transitional procedure

Although the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (the 2011 Regulations) will be repealed, they will continue to apply where an applicant, an appellant or a qualifying body in relation to a neighbourhood development order submitted an environmental statement or request for a scoping opinion before 16 May 2017.

Parts 1 (General provisions) and 2 (Screening) of the 2011 Regulations will also continue to apply to a screening opinion or direction where a request was made or the adoption of a screening opinion or direction was initiated before 16 May 2017.

Comment

The EIA Regulations codify a great deal of previous good practice in relation to the environmental impact assessment process and procedures. This ensures on the whole that applicants have a great deal more certainty in terms of what is expected from them and what they can expect from decision makers. Applicants also have greater scope to “screen out” developments from the requirement for environmental impact assessment.

However some aspects of the EIA Regulations bring new risks of challenge to the process by widening the scope of matters that need to be assessed by the introduction of the terms “population and human health” and “biodiversity” which increases the prospect of matters being overlooked or inadequately assessed, and the requirement for environmental statements to be prepared by “competent experts” without defining what is meant by that term.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.