UK Government consultation on revised EIA Regulations
The European Union’s EIA Directive was amended in 2014 (‘Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment’) to take account of case law and other challenges that have emerged over the last 25 years. It also introduces a definition of EIA and new monitoring requirements.
The EU highlighted some key objectives for the revision, including:
ensuring consistency of application across Member States
increasing efficiency alongside other EU-required assessments
reducing the burden on developers and decision makers, and speeding up consenting, by focusing EIA on the most significant effects.
The UK Government is finally consulting on the transposition of the revised Directive into domestic law. The consultation period is short, from 14 December 2016 until 31 January 2017, and the transposition must be complete by 16 May 2017. A DCLG consultation proposes the introduction of a new set of EIA Regulations to the town and country planning system in England, while a parallel joint technical consultation by Defra and the devolved administrations in Wales, Scotland and Northern Ireland looks at planned changes to the EIA Regulations for forestry, agriculture, water resources, land drainage and marine works (marine licensing). The transposition has implications for all stages of the planning and development process.
Despite the Brexit vote, the UK must continue with transposition, as the deadline falls well before the exit deal can be finalised.
EIA screening (does your development require EIA?)
Screening requests will need to be accompanied by more comprehensive information on a broader range of topics than at present. This front-loading may require a mini-EIA in itself. The revised Directive allows mitigation measures to be taken into consideration when screening for EIA, so if you can clearly demonstrate that you can mitigate all significant adverse environmental effects, EIA may not be necessary.
The consultation reflects the Directive’s requirement for the determining authority to state the main reasons for its screening opinion. For a negative screening decision, the authority will need to explain any inherent design and other measures that need to be included as part of the project for it not to be considered as ‘EIA development’. It will be worth making sure this happens to avoid possible legal challenges, and we would advise including a ‘mitigation route map’ with the screening request to give comfort to the planning authority that the necessary mitigation can be secured.
EIA scoping (what topics need to be addressed?)
The revised Directive requires that if you make a scoping request to the decision maker, your environmental statement must be based on the scoping opinion. This could be problematic if you need to make project design changes post-scoping that eliminate or introduce topics. The consultation refers to ‘the most recent scoping opinion or direction issued (so far as the proposed development remains materially the same as the proposed development which was subject to that opinion or direction)’. Some further clarity may be required here.
You will need to consider some new topics such as biodiversity, climate (and climate change resilience), land, human health, and vulnerability to major accidents or disasters. Arguably some of these are just name changes rather than new topics - for example, ‘biodiversity’ has effectively replaced ‘flora and fauna’ - and many are already addressed in good UK practice.
Reporting the EIA
The revised Directive refers to an ‘EIA Report’ rather than an ‘environmental statement’. For an exercise aimed at ensuring consistency of application across Member States, it is worth noting that the UK and Welsh Government consultations continue to refer to an ‘environmental statement’, while the Scottish Government is proposing to adopt ‘EIA Report’!
Determining the application
The decision-maker must now be satisfied that the environmental statement is ‘up to date’ before determining the application. This may become a consideration where, for example, your application has been through a long appeal process, or if there are reserved matters applications some time after the original planning decision.
The revised Directive requires the implementation of mitigation measures to be enforced, and post-consent monitoring of significant environmental effects (presumably including the effectiveness of any mitigation in dealing with them). The transposition consultation suggests that this can be dealt with through existing provisions such as planning conditions. Nevertheless, this has implications for programme and costs post-consent, and further strengthens the advantage of introducing mitigation to reduce the number of significant residual effects in your environmental statement.
Experience and expertise
Going forward, there will be a need for you to use ‘competent experts’ to prepare the environmental statement, and for authorities determining EIA applications to ensure that they have (or have access to) ‘sufficient expertise’ to examine and reach a reasoned conclusion about the environmental statements. The consultation proposes that the determining authority should decide whether the environmental statement has been prepared by persons who have ‘sufficient expertise’ to ensure its completeness and quality. There should be a section in the environmental statement showing how the requirement for competence has been met. No definition is given, and as is traditional in EIA legislation, ‘competent expert’ and ‘sufficient expertise’ are open to interpretation and seemingly muddled here, and the situation around what represents competence and expertise may need to be clarified through legal challenge and case law, especially as other Member States seem to be introducing a much higher bar in terms of appropriate professional expertise.
As many local planning authorities do not have in-house technical expertise, it is unclear whether comments from technical consultees will ‘count’ as access, or who might otherwise be responsible for funding their access to it, though it is possible that developers may have to pay for specialist expertise at both the environmental statement preparation and determination stages to ensure a secure consent.
TÜV SÜD PMSS’s consents and environment team can provide you with advice on the proposed changes and consultation, and more generally on EIA practice, legislation and requirements. Team members have experience of managing and reviewing EIAs across onshore and offshore environments and in a wide variety of development sectors. The team includes a Principal EIA Practitioner on the Institute of Environmental Management and Assessment (IEMA) Register.
If you would like to discuss any of these matters please contact:
Rachel McCall: +44 (0) 1489 558361; email@example.com or Andrew Mahon: +44 (0) 1489 558363; firstname.lastname@example.org