NEW EIA REGULATIONS COME INTO FORCE TODAY
From today (Tuesday 16 May 2017) the revised Town and Country Planning Environmental Impact Assessment (EIA) Regulations come into force. The new 2017 EIA Regulations transpose the European Directive (2014/52/EU) as amended. Member States are required to transpose the Directive into domestic legislation by 16 May 2017.
As set out in HOW’s previous blog (http://www.howplanning.com/blog/eia-regulations-2017-laid-before-parliament) there is a period of transition following the publication of the 2017 EIA Regulations and it is worth noting that the existing 2011 EIA Regulations still apply to any project that has already commenced by way of a request for a Screening or Scoping Opinion or through the submission of an Environmental Statement before today. However, the new 2017 EIA Regulations will
now apply to all requests for a Screening Opinion or Scoping Opinion together with their associated Environmental Statements (ES).
What are the changes to the EIA Directive?
Screening
The new Regulations require an Applicant to provide more information in the request for a Screening Opinion to determine the likely significant effects of a project. This will make the screening process more comprehensive with the requirement for more up-front work. In addition, a developer “may provide” details of proposed mitigation, which may avoid or
reduce the significance of the identified effect.
Essentially, this aims to provide the competent authority with enough information to make its Screening Opinion and, hopefully, discount the requirement for an EIA. This will generally mean that technical assessments together with identified mitigation measures should support EIA Screening Opinion requests submitted to the competent authority.
It is already current best practice to provide the competent authority with enough information to be able to make a decision. A screening request supported by technical work and a range of proposed mitigation measures (if required) to reduce the significance of any identified effects could therefore allow a development to be ‘’screened out’’ of the requirement for EIA, this would however require the commitment to mitigation measures at the screening stage of development.
Scoping
The new Regulations includes the requirements for an ES to be based on 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.
This change means that if a Scoping Opinion has been sought the ES must be based on the opinion that has been received; an ES not based on the Scoping Opinion will be open to challenge. This does not mean that changes to the scheme are not permissible following the receipt of a Scoping Opinion, however, where changes are material, then the scoping exercise may have to be revisited prior to the submission of an application.
Although an ES is now required to be based upon a scoping opinion if one is received, the scoping process is still not a mandatory requirement of the EIA process.
Content of Environmental Statements
There are changes to the list of environmental factors to be considered as part of the EIA process. These include changes in terminology from ‘’Human Beings’’ to ‘’Population and Human Health’’, ‘’Flora and Fauna’’ to ‘’Biodiversity with particular attention to species and habitats protected under Directive 92/43/EEC and Directive 2009/147/EC’’ and ‘’Climatic Factors’’ has been amended to ‘’Climate’’.
There is a general lack of industry guidance on the methodology to be adopted in assessing some of these EIA topics. The focus should be on agreeing the approach early with the competent authority as part of the Scoping process. The changes in terminology mean that the scoping stage of EIA development can be increasingly important and valuable.
Monitoring of Environmental Impacts
The new EIA Regulations put a larger emphasis on monitoring measures for significant adverse environmental effects. The Regulations state that if monitoring is considered to be appropriate, then the relevant planning authority should consider whether any remedial action will also be required. The new Regulations also state that monitoring and the duration of the monitoring should be proportionate to the nature, location and size of the proposed development and the significance of its effects on the environment.
It is not considered that these amendments will bring a substantial change to how monitoring is currently implemented as Planning Conditions and Legal Agreements are already frequently used as a means of monitoring identified environmental effects and to keep mitigation measures up-to-date. It is envisaged that this practice will largely remain the same.
Competent Experts
The new Regulations require the ES to be prepared by ‘’competent experts’’. The Regulations set out that it is the developer’s responsibility to ensure that an ES is produced by competent experts and that ‘’the environmental statement must be accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts."
The Regulations put the emphasis very much on the developer to ensure the ES has been appropriately prepared. However the Regulations also require that the local planning authority has sufficient expertise to consider the ES once submitted and state that the
“relevant planning authority or the Secretary of State must ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement."
Consultation Period
The new Regulations have increased the consultation period for a submitted ES from 21 days to a minimum of 30 days. An EIA application must not be determined until 30 days from the last date a copy was served to the local authority. This could have time implications for projects especially where additional information is submitted during the determination of a planning application (ie. submission of an ES Addendum under Regulation 25 of the EIA Regulations).
So what will these changes mean?
Overall, it is not expected that the change in regulations will have a substantial impact upon EIA development, many of the proposed changes are already conducted widely as best practice within the UK.
The requirement for technical information to support a screening request could add to the delay of achieving a Screening Opinion, however extra information will most likely be the major contributory factor for achieving a negative Screening Opinion, avoiding the requirement for EIA. Mitigation measures proposed at the screening stage may also contribute to a negative Screening Opinion, however this will result in mitigation measures being fixed prior to the submission of the planning application.
It is now required that an ES is based on the Scoping Opinion received. Whilst scoping still isn’t a mandatory stage, it is important to scope an EIA to reduce delays and costs associated with providing further information in respect of the EIA during the determination period. The increase in the consultation period for an ES from 21 to 30 days could also add delays to the determination of a planning application.
If you would like to discuss how the regulation changes could impact upon a project, feel free to get in touch with HOW’s environmental team.
Each member of the HOW environmental team holds a Masters degree in Environmental Impact Assessment and Management and is a member of the Institute of Environmental Management.
A link to the new EIA Regulations:
http://www.legislation.gov.uk/uksi/2017/571/pdfs/uksi_20170571_en.pdf