Articles

If in-depth analysis is what you need, the chances are that you will find it here. Our experts regularly produce articles on legal issues and upcoming changes and you will find them all here.
Paper cut out of a house on grass

20/12/2016

Breaking News: The new Environmental Impact Assessment Regulations - a complete overhaul of EIA?

Background

Since 1988, applicants for planning permission and local planning authorities (“LPAs”) have been required to consider, prior to the grant of planning permission, whether certain development proposals are likely to lead to significant effects on the environment. Some development projects such as power stations and quarries must always be subject to environmental impact assessment (“EIA”). Other projects will only need to be subject to EIA if they exceed certain size thresholds and are considered to have likely significant effects based on their location, size and nature, or in a sensitive area.

The EIA regime has not been subject to considerable reform since 2011, save for amendments in April 2015 that increased certain thresholds which enabled fewer development projects to be subject to EIA.  For example, residential developments of less than 150 units or 5 hectares are no longer caught by EIA unless within a sensitive area. 

Government has this week published new draft regulations in the form of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“Regulations”). The Regulations incorporate amendments to the European EIA Directive from 2014, which the UK remains obligated to transpose into domestic law until the UK formally exits from the European Union following the referendum on 23 June this year.

Similar draft regulations have also been published in respect of Nationally Significant Infrastructure Projects (“NSIPs”), namely the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017. The changes to the regime for both non-NSIP and NSIP development projects are very similar - although this briefing shall focus on the likely changes arising from the Regulations. 

Summary of Main Amendments

Screening

Through the screening process the LPA or Secretary of State (“Decision Makers”) confirms whether or not EIA is required. This process has been amended significantly to strengthen the screening process and standardise the information that is required in the following ways:

  1. applicants are now required to submit formal screening reports with their applications. It is not compulsory to request a screening opinion prior to the submission of the planning application and this will remain. However, if it subsequently appears to the LPA that the proposals may need to be subject to EIA (i.e. a development of a type falling in Schedule 1 or Schedule 2 of the Regulations), they should request from the applicant a screening report detailing the proposals and likely environmental effects. Therefore, applicants should submit screening reports preferably prior to, or with their application to avoid delays;
  2. enshrine the ability for Decision Makers to negatively screen applications if mitigation measures are proposed to avoid significant effects. Whilst the Supreme Court decision in Champion v North Norfolk District Council [2015] UKSC 52 (a case successfully defended by Howes Percival) already confirmed this position, applicants may now be more inclined to avoid the need for EIA through the early consideration of mitigation and how this may be secured; e.g through condition by which is the most robust approach, as opposed to through section 106 agreements which may be varied without public consultation;
  3. whilst the types of project or thresholds for development that require EIA have not changed, applicants are now required to include information concerning the impacts relating to: a) waste; b) use of natural resources (such as land, water and biodiversity); c) risks from major accidents or disasters (including flooding); d) cumulative effects; all with greater focus on mitigation, and impacts arising from the construction as well as the operational phases;
  4. more detailed and robust explanation as to the reasons for the screening decision and those precise mitigation measures required where a negative screening opinion is adopted; and
  5. LPAs will still have 21 days to provide their screening opinions. Extensions may be agreed, but only up to 90 days. If the Secretary of State is issuing a screening direction, it will have 3 weeks or such longer period if reasonably required up to 90 days unless exceptional circumstances apply.

Scoping and the Environmental Statement

Where proposals are subject to EIA, applicants may voluntarily request an opinion from the Decision Maker confirming the required contents of the Environmental Statement (“ES”). This scoping process will continue to be voluntary. More onerous requirements will, however, be introduced for the preparation of the ES as follows:

  1. a requirement that where a scoping opinion is obtained, the ES must be “based” on the latest scoping opinion (so far as the proposals remain materially the same);
  2. the ES must be prepared by a competent expert, i.e. a person who has sufficient expertise to ensure its quality and completeness, as judged by the Decision Maker. The ES must include a statement confirming how this has been complied with, and
  3. for a variety of new matters to be considered and assessed, including impacts on or arising from human health, natural disasters, the use of natural resources and quantity of materials required.

Publication and Consultation

The Regulations impose two new and more stringent requirements requiring:

  1. the ES and any “further information” to be published electronically and on the LPAs website; and
  2. for statutory consultees and members of the public to be allowed 30 days (as opposed to the current 21 days) to consult and comment on any environmental information.

Decisions and Monitoring

In summary, the Regulations will require planning permissions to include a wealth of new information concerning the consideration of environmental impacts. Planning permissions will need to include:

  1. reasoned conclusions as to any significant environmental effects arising from the development;
  2. any conditions which specifically relate to the likely significant environmental effects of the development; and
  3. where appropriate, measures to monitor the impacts of the development during the construction phase and beyond, to include any potential remediation and its duration.

Penalties

Whilst the Directive requires the UK to implement penalties for non-compliance with the EIA obligations, the Government has understandably decided that the existing planning enforcement regime is sufficient to ensure compliance. However, as enforcement is a discretionary remedy for LPAs and a course of action they should only take if they consider it “expedient”, an explicit duty has been included in the Regulations for LPAs to have “regard” to the need to secure compliance with the Directive. In reality, it is difficult to see how this will change the LPAs approach to enforcement in the event planning conditions are breached - or if unlawful EIA development is constructed.

Practical Consequences

Developers and LPAs shall be all too aware of the potential cost and delay of securing planning permission for EIA development. The process-driven nature of EIA (and indeed Appropriate Assessment (“AA”)) has also led to an unprecedented rise in judicial review challenges to planning permissions on the basis that the EIA or AA process has not been adhered to religiously and robustly. All these factors cause significant delay and disruption to projects or, at worst, result in the planning permission being quashed.

Whilst the Regulations will be more stringent and strengthen the EIA regime, it seems unlikely that the new Regulations will drastically amend the way that EIA works in practice, save that additional environmental impacts shall need to be assessed and considered, and for LPAs to ensure that they are determining applications and drafting decision notices in a way that fully complies with the requirements of the Regulations. It is true that the Regulations will enshrine in statute: the need to submit screening reports; that mitigation measures may be taken into account; that environmental statements must be based on the scoping opinions and prepared by competent experts; and for the Decision Maker to ensure the environmental impacts are properly considered when determining the application. However, in reality, applicants and LPAs are likely to be undertaking these steps already for projects and applications to date.   

That said, objectors to new development proposals are likely to review the Regulations very closely. One cannot deny that the Regulations will be much more prescriptive and therefore may result in greater scrutiny from those wishing to challenge planning permissions and stifle new development. It is, therefore, important for applicants and LPAs to familiarise themselves with the Regulations and take early advice to ensure that any planning applications submitted when the Regulations come into force are fully compliant and robust. This shall minimise the delay in obtaining consent and the risk of successful challenge.

The Regulations shall come into force from 17 May 2017, subject to any amendments arising from the Government consultation that closes on 2 February 2017. Transitional provisions are expected to ensure that the Regulations shall not apply to planning applications submitted (or already subject to screening or scoping opinions or requests) before 17 May 2017. A further briefing note shall follow once the final Regulations are published.

Please contact Jay Mehta on (01603) 580055 or at jay.mehta@howespercival.com if you would like to discuss further.

For further reading on the draft EIA Regulations 2017, please visit https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/577287/EIA_Consultation_Paper.pdf