Skip to main content
CLOSE

Charities

Close

Corporate and Commercial

Close

Employment and Immigration

Close

Environmental, Social, and Corporate Governance

Close

Fraud and Investigations

Close

Individuals

Close

Litigation

Close

Planning and Infrastructure

Close

Public Law

Close

Real Estate

Close

Restructuring and Insolvency

Close

Energy

Close

Entrepreneurs

Close

Private Wealth

Close

Real Estate

Close

Tech and Innovation

Close

Transport

Close

Today’s entry reports on the new regime for environmental impact assessment.

Today is 16 May 2017, which is the date by which the new environmental impact assessment (EIA) Directive must be implemented (see Article 2(1)). Has the UK managed it? Mostly.

The thing is, each legal regime for giving permission for some sort of development either has its own separate EIA regulations (which is easier for those drafting them), or EIA is woven through the main regulations (which is easier for those affected by them). The government has implemented the first sort by today’s deadline but not the second.

Examples of the first are:

Examples of the second are:

  • the Transport and Works Act 1992 regime;
  • the Harbours Act 1964 regime; and
  • the Highways Act 1980 regime.

The government has consulted upon the latter but hasn’t implemented the results yet. Tut tut – we might get thrown out of the EU!

The regulations apply to any project that hasn’t applied for its main consent yet, or for a screening or scoping opinion. If you’ve got that far you can carry on using the previous regime. I expect there was a rush for the last two in the last couple of weeks, since a basic application isn’t that expensive to prepare, although if it’s too basic it might get rejected.

So what are the changes? Ever obliging, I have produced a tracked-change version of the Infrastructure Planning EIA Regulations so that you can see what they are reasonably clearly. Feel free to ask me for a copy – all I ask is some intel on forthcoming projects.

Here is a quick summary of them if black (or red) letter law is not your thing:

  1. Even the definitions are interesting. The definition of ‘preliminary environmental assessment’ in the main definitions article has been removed, but before you get too excited it reappears unchanged in regulation 12, as that is the only place it is used. There is also a definition of ‘UK environmental assessment’, which I take to be a precursor to post-Brexit EIA.
  2. A new regulation 5 sets out what EIA actually is – something that hadn’t been done before.
  3. Screening opinions must be given within 90 days, although this period can be extended (7(6)).
  4. A new requirement that an environmental statement must be ‘based on’ any scoping opinion that is obtained – how closely remains to be seen and this may discourage the seeking of scoping opinions (14(3)).
  5. The deadline for pre-application consultation and making representations on an accepted application must be at least 30 days rather than 28 days.(19(6)(h)(ii) and 36(4)(c)(ii)).
  6. The big change is created by new regulation 21. When deciding an application the Secretary of State must ‘reach a reasoned conclusion’ on the significant effects of the proposed project on the environment and integrate this into his or her decision and decide whether monitoring measures should be imposed. The decision notice must contain all this information (30).
  7. I take that to mean that an independent conclusion must explicitly be reached on the effects of the project, and sufficient expertise must be available for this purpose (5(5)).
  8. Monitoring and EIA should be co-ordinated to avoid duplication if, say, habitats are also engaged.
  9. It is possible, but exceptional, to be exempted from the requirement to undergo EIA (33).
  10. There must be a functional separation where the decision-maker is also the applicant (35).

Those are the main changes as I see them, and the main main change is embodied in regulation 21.

This is a big day in environmental impact assessment that will affect every project coming forward from now on, so it is certainly worth being aware of what is going on.

Latest articles

Our Offices

London
One Bartholomew Close
London
EC1A 7BL

Cambridge
20 Station Road
Cambridge
CB1 2JD

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
4 Grosvenor Square
Southampton SO15 2BE

 

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
4 Grosvenor Square
Southampton SO15 2BE

Follow us

  • Lexcel
  • CYBER ESSENTIALS PLUS

 

BDB Pitmans has launched Broadfield and is now part of the new transformative international law firm.

Should you need to confirm our bank details, please call +44 20 7092 6996.

© BDB Pitmans 2024. One Bartholomew Close, London EC1A 7BL - T +44 (0)345 222 9222

Our Services

Charities chevron
Corporate and Commercial chevron
Employment and Immigration chevron
Environmental, Social, and Corporate Governance chevron
Fraud and Investigations chevron
Individuals chevron
Litigation chevron
Planning and Infrastructure chevron
Public Law chevron
Real Estate chevron
Restructuring and Insolvency chevron

Sectors and Groups

Private Wealth chevron
Transport chevron