EIA update

On 16 May the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the 2011 Regulations”) were revoked and replaced by The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the 2017 Regulations”).

The 2017 Regulations transpose the latest changes introduced by EU Directive 2014/52/EU and will introduce changes to Environmental Impact Assessment (“EIA”) at all stages in the process, covering the need for greater detail at screening, the enforceability of scoping opinions, detailed reasons in decision-making, the use of ‘experts’ in drafting and assessing the Environmental Statements (“ES”), new topics to be assessed and more focus on significant effects and future monitoring obligations.

The aim of the 2017 Regulations is to reduce the number of EIAs, so that there is a greater likelihood of “borderline” developments being screened out at an early stage, once proposed mitigation measures have been taken into account. However the repercussions of the changes may also result in more opportunities for legal challenge by objectors to development.

Screening

Requests for screening under the 2011 Regulations had to include details of the proposed development’s “possible effects on the environment”. The 2017 Regulations require instead a description of the aspects of the environment likely to be significantly affected by the development. The inference, therefore, is that less than significant effects no longer need to be included.

Local Planning Authorities (“LPAs”) now need to give more detailed reasons for their decisions. Under the 2011 Regulations screening opinions had to include a written statement giving clearly and precisely the full reasons for the screening decision. The 2017 Regulations require LPAs to state the main reasons for their conclusion with reference to the relevant selection criteria listed in Schedule 3 to the Regulations. This is a subtle difference, but failure to cite express consideration of a relevant characteristic, location or impact could give rise to future challenge.

The characteristics of the development to be considered at screening now include “the risk to human health” (for example due to water contamination or air pollution) and a reference to biodiversity. The introduction of these new topics could lead to further avenues for challenge, especially during the period when the 2017 Regulations first come into effect and the parameters of these new topics are established. The additional information required at the screening stage will also inevitably require further survey and design work, increasing both time and cost before a screening opinion can be sought.

The characteristics of a potential impact now need to take into account the “culmination of the impact with the impact of other existing and/or approved development”. This change of wording provides some clarification on whether proposed, but not yet approved, future development should be taken into account.

More significant however, is the introduction of the ability to consider the potential impacts in the light of “the possibilities of effectively reducing the impact” through mitigation measures. Now that it is clear that account should be taken of any proposed mitigation at the screening stage developers should consider whether to invest more time and resources into showing that proposed mitigation measures can negate any significant effects in order to obtain a negative screening opinion.

The current target of three weeks for screening opinions is to be retained, but with the introduction of a 90 day maximum within which extensions of time can be agreed. The risk is that LPAs may view this as a 90 day target, especially in light of the additional information that they now need to consider.

Scoping

Under the 2017 Regulations, where a Scoping Opinion has been sought and provided, if the ES subsequently submitted does not follow the parameters of the Scoping Opinion, it will not be compliant with the Regulations. Consequently, Scoping Opinions must now be followed “to the letter” or risk gifting objectors a potential avenue for challenge. The alternative, of course, is to avoid scoping altogether, as it remains discretionary.

EIA Preparation and Assessment

In order to ensure the completeness and quality of the ES the developer must now ensure that it is prepared by competent experts and is accompanied by a statement outlining the relevant expertise or qualifications of such experts. The vast majority of ES (or their individual chapters) are already produced by specialist consultants. However, for the cost conscious developer or planning consultant who tries to contain this work in house, they may find their ability as a “competent expert” called into question. Where there is some doubt as to a potential author’s qualifications it may be prudent to have their credentials verified and agreed by the LPA beforehand, rather than risk a dispute over this, after the ES has been written.

Similarly the LPA must ensure that they have, or have access to, sufficient expertise to examine the ES. It is questionable whether some LPAs have the expertise or resources to do this in house. The 2017 Regulations’ requirement for “access to” will enable LPAs to outsource this work to external consultants where required, but it is likely that ultimately the developer will be asked to foot the bill.

LPAs must not grant planning permission unless satisfied the ES is up to date. Therefore careful planning at the evidence base stage will be required to ensure that wildlife surveys are carried out during the latest optimum survey period available before submission and the ES is submitted promptly thereafter, otherwise the information could be rejected or challenged as “out of date”.

Monitoring

If planning permission is to be granted, the LPA must consider whether it is appropriate to impose monitoring measures for the “monitoring of significant adverse effects on the environment” identified in the ES. Such measures may include provision for potential remedial action, must be proportionate to the development and only be imposed if they cannot be achieved via any some other legal mechanism. In practice section 106 planning obligations often provide for monitoring and safeguarding measures where obligations or targets have not been met. This is likely to remain the case.

Brexit

It is possible that, once we leave the EU and the EIA directives are no longer mandatory, the Government will consult on further changes to the Regulations. However until we leave the EU and for some time thereafter (during which the focus will be on transitional arrangements) the 2017 Regulations will continue to apply and it in inevitable that EIA will be retained in some form or another for the foreseeable future.

Wales

Apart from the exemption for development for national defence purposes, the 2017 Regulations only apply in England. However, the Town and Country Planning (Environmental Impact Assessment)(Wales) Regulations 2017 introduced changes to the EIA regime in Wales which also came into effect on 16 May. The changes closely mirror those in England and there is little difference between the two sets of regulations. For more information on the changes in Wales please contact us.

Conclusion

As noted above, the changes to the EIA regime are intended to simplify the rules for EIA and reduce its administrative burdens, save where necessary. The view of the Government when consulting on the changes required by the EU Directive was that the existing approach already adopted in England was, for the most part, satisfactory and so the changes introduced on 16 May are the minimum required to bring the Regulations in line with the EU Directive.

However, the most significant changes do introduce some additional requirements and it seems unlikely, therefore, that these will result in the simplification or streamlining of the process for most EIA development. In some respects, the changes may present objectors with more opportunities to challenge the conformity of an ES with the requirements of the 2017 Regulations.

This is a summary of some of the most notable changes introduced by the 2017 Regulations and their potential implications. It is not a comprehensive list of all the changes. Please contact us should you require a comprehensive list or further advice in connection with EIA.