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16 December 2016

734: Government consults on new environmental assessment regulations

Today’s entry reports on a consultation on implementing the new environmental impact assessment directive.

After a review coinciding with 25 years of the original directive being in force, the European Union (remember it?) passed a revised Environmental Impact Assessment (EIA) directive in May 2014 and gave member states three years to implement it in their own legislation, ie until May 2017, the 16th to be exact. As we will still be members at that point, we are obliged to implement it along with everyone else.

While Wales, Scotland and Northern Ireland commenced consultation on revising the EIA regulations in their countries a while ago, England has been a bit slow and is now getting round to it with just over five months to go.

Here, the directive is implemented separately in each consenting regime, and on Wednesday the government launched a consultation on the versions for the town and country planning regime currently enacted by the Town and Country Planning Act 1990 and the infrastructure planning regime enacted by the Planning Act 2008.

The consultation can be found here and closes on 1 February 2017.

The main contrast between the regimes in EIA terms is the percentage of projects requiring to undergo it: 0.1% in the town and country planning regime and (to date) 97.5% in the infrastructure planning regime.

The consultation lists 13 changes made by the 2014 directive. Rather than paraphrase them I might as well just reproduce them here as they are quite succinct:

  • the addition of a definition of the environmental impact assessment process – Article 1(2)g;
  • changes to the circumstances in which a project may be exempt from the requirements of the Directive – Articles [sic] 1(3);
  • introduction of Joint and/or Coordinated procedures for projects which are subject to the Habitats or Wild Birds Directives as well as the EIA Directive – Article 2(3);
  • changes to the list of environmental factors to be considered as part of the environmental impact assessment process – Article 3;
  • clarification of the options for screening and amendments to the information which is required and the criteria to be applied when screening projects to determine whether the Directive applies – Article 4, Annex IIA and Annex III;
  • amendments to the information to be included in the environmental statement – Article 5 and Annex IV;
  • a requirement for environmental statements to be ‘based on’ a scoping opinion, where one is issued – Article 5(2);
  • the use of competent experts – Article 5(3);
  • a requirement to inform the public of projects electronically – Article 6(2) and 6(5);
  • a new article elaborating on information to be given in decision notices and the decision making procedures – Article 8a;
  • monitoring significant adverse effects – Article 8a(4);
  • a new Article requiring the avoidance of conflicts of interest – Article 9a; and
  • the introduction of penalties for infringements of national provisions – Article 10a.

How the existing regulations are amended for each of these is then set out in turn; complete replacement regulations are appended as two annexes. Questions are only asked where the directive hasn’t been copied across exactly – indeed only nine questions are being asked.

Things I think are significant:

If a screening opinion, scoping opinion or an actual application have been applied for before 16 May 2017, then the new provisions will not apply. Expect a rush of such requests (particularly the first two) in early May.

We’re still calling it an ‘environmental statement’ even though the directive calls it an:

‘environmental impact assessment report’.

Pedantry corner: even EIA consultants continue to call the document ‘the EIA’, when EIA is the whole process. If you’re putting a ‘the’ before EIA you’re getting it wrong.

Proposed mitigation can be used at the screening stage to avoid needing EIA at all. Presumably the mitigation will have to be guaranteed in the consent that then results.

The criteria and thresholds in Schedule 2 (i.e. size thresholds that trigger EIA) are not being amended, and consultees are asked if that is OK or if they’ve spotted anything that needs changing.

The maximum time for a screening opinion is set at 90 days, even though our regulations put the usual limit at just 21 days, although that can be extended. The only change being made, then, that any extension(s) cannot make the time more than 90 days in total.

Habitats considerations can be combined with EIA or just coordinated with them. We’re doing the latter, with the authorising body responsible for coordination.

More topics have to be included in environmental statements.

If a scoping opinion is sought, the environmental statement must now be ‘based on’ it, or the latest version of it if more than one is sought.

The ES must now be produced by ‘competent experts’ and the decision-making body must also be advised by people with appropriate expertise. This is now included, although of course it would be pretty unusual for it not to happen already.

Consultation on the environmental statement must be at least 30 days. In infrastructure planning it is currently 28 and in town and country planning only 21. This is therefore being extended and is something all prospective applicants should note when planning their consultations.

Decisions must contain appropriate monitoring measures, so that has been added.

Decisions must be based on up-to-date information. The consultation considers new information coming out at a late stage, but I would have thought the assessment taking place too long ago was also an issue.

The requirement for separation of responsibilities when the decision-maker is the developer is not proposed to result in any changes.

Although ‘dissuasive’ penalties are now required to be imposed for not doing what a developer is supposed to, the government considers the existing enforcement process to be sufficient, merely requiring authorities to have regard to this requirement when undertaking enforcement.

Given the limited scope of the questions, I would not expect the draft regulations to change much and you can probably use them as they are, with a mental note to check the final versions.

I would also say that the changes are ‘backward compatible’, ie if you do what is required by the amended directive now, you will also be compliant with the existing directive, so if you’re not sure which one will apply to your project, use the new one and you won’t go wrong.

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