The process of Environmental Impact Assessment (EIA) and the recent change in regulations earlier this year can cause a number of problems that may affect current or future developments you may be working on. This KnowHOW sets out the effects of the 2017 Regulations in practice, specifically focusing on the implications of EIA Screening.

As a refresher, the ‘Screening’ of a development is a procedure to determine whether a proposed project is likely to have significant effects on the environment. The Regulations provide a series of thresholds which act as guidance criteria to determine the requirement or otherwise for an EIA.

Most projects fall under two categories within Schedule 2 of the 2017 Regulations; industrial and residential/commercial. The thresholds for these projects are set out below. Proposed developments above these thresholds should be screened to determine the requirement for EIA.

The Impact of the 2017 Regulations

There are two extracts from the 2017 Regulations which are of particular importance, relating to the decision making process and the consideration of commonplace mitigation measures in the EIA Screening process. The paragraphs have been included below for completeness (with HOW emphasis in bold).

Section 5, paragraph (5) of the 2017 Regulations states:

“Where a relevant planning authority adopts a Screening opinion under regulation 6(6), or the Secretary of State makes a Screening direction under regulation 7(5), the authority or the Secretary of State, as the case may be, must—

(a) state the main reasons for their conclusion with reference to the relevant criteria listed in Schedule 3;

(b) if it is determined that proposed development is not EIA development, state any features of the proposed development and measures envisaged to avoid, or prevent what might otherwise have been, significant adverse effects on the environment; and

(c) send a copy of the opinion or direction to the person who proposes to carry out, or who has carried out, the development in question.”

Section 6, paragraph (2) of the 2017 Regulations states:

“(2) A person making a request for a Screening opinion in relation to development where an application for planning permission has been or is proposed to be submitted must provide the following- …

(e) such other information or representations as the person making the request may wish to 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.”

Analysis

The 2017 Regulations strengthen the requirement for a more detailed Screening exercise to be undertaken. The changes in the Regulations place an increased obligation on the developer to provide more detailed information on the likely significant effects of a project and importantly to outline any required mitigation measures that are required to reduce the significance of effects. The critical points as an outcome of these legislative changes can be summarised as follows;

1. If an EIA Screening request is not supported by a technical evidence base or does not outline any required mitigation measures the Local Planning Authority may request additional information to assist them in their decision. In such circumstances, the Council can now request to extend the time period to make their decision from 21 days to a maximum of 90 days thus resulting in potential delays in receiving the Council’s Screening Opinion. As such, in order to prepare a robust assessment, technical assessments are required to inform the EIA Screening request and identify any required mitigation measures. This is however dependant on the availability of information at the time of the request and a judgement will be required on the optimum time to submit a request depending on the circumstances of each project.
      
2. There is also a requirement to ensure that where mitigation measures are required to reduce the significance of effect and thereby “screen out” developments from requiring EIA, these are carried through to determination of an application to avoid the prospect of legal challenge. In all cases, it will be necessary to ensure that any Screening Opinion issued is fully justified and the main reasons for the decision are clear and based on a robust request.

Notwithstanding the above, the usual legal position is that mitigation measures must be ignored when considering whether impacts are likely to be significant i.e. the impacts must be considered in their unmitigated state for the purposes of Screening. Case law has developed to say that in some limited cases mitigation can be taken into account at the Screening stage, but this is restricted to situations where tried and tested everyday mitigation measures are to be imposed to deal with standard, predictable and certain impacts i.e. the implementation of a Construction Environmental Management Plan.

The process of EIA is to allow the public and third parties to understand and comment on the potential significant impacts of development and the proposed mitigation measures. Where there are potentially complex significant effects regardless of the requirement for mitigation to reduce these effects the EIA process is likely to be engaged.

In agreement with the above approach, Planning Practice Guidance states (HOW emphasis in bold):

“Developers are encouraged to identify any features of their proposed development and any measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment and to include these with the information required to inform the Screening decision (see regulation 6). The extent to which mitigation or other measures may be taken into account in reaching a Screening opinion depends on the facts of each case. The local planning authority must have regard to the amount of information available, the precautionary principle and the degree of uncertainty in relation to the environmental impact. However, there may be cases where the uncertainties are such that Environmental Impact Assessment is required. The local planning authority or the Secretary of State must ensure that, where such measures have enabled them to conclude that there will not be significant effects on the environment, and an Environmental Impact Assessment is not required, that their Screening decision states those features of the development and those measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.”

In summary, it’s a potentially tricky area of practice. If, as a result of the EIA Screening process, significant impacts are identified guidance states that these effects should be assessed within an appropriate EIA, and the degree of weight mitigation measures are taken into account rests on the Local Planning Authority’s shoulders.

Time Sensitivity of EIA Screening

EIA Screening is a time-critical process. Confirming early in the process that an EIA is not required is important to minimise delays. However, we should be minded that the EIA Screening Report needs to be informed by technical evidence which accurately reflects the proposed development at the time of submission for planning.

Consequently, in the event there is a good degree of confidence that the development would not be considered EIA development, we would suggest submitting the EIA Screening Report at the earliest opportunity to rule out the requirement for EIA.

In the event that the requirement for EIA is borderline and the project is working towards a strict deadline, it may prove worthwhile progressing a ‘Voluntary’ EIA which is tightly scoped, identifying the site specific potentially significant environmental constraints.

It would be beneficial to appoint a specialist EIA coordinator at the early stages of a project. This will ensure planning and EIA strategies align and the project deadlines can be achieved in a time efficient manner.

HOW would be delighted to assist in providing specialist advice regarding EIA for any existing or future developments.

The 2017 EIA Regulations can be found here.