Deadline approaches for significant changes in EIA process

mind-the-gap

Designed by The Landmark Practice

Changes to the EIA Directive are imminent. Submit requests for Screening/Scoping Opinions before 16 May 2017 for consideration under the existing regime.

Why the rush?

Brexit notwithstanding, as an existing Member State, the UK is obliged to implement the new EIA Directive by May 16, 2017.

This date should be a key consideration for developers who are considering bringing forward EIA development, or projects that are likely to require screening for EIA.  The new Directive will make changes to the EIA process that will, at least in the short term, be more onerous for both developers and receiving authorities.

To ensure that a project is considered under the existing EIA Rules, the following documents must be submitted to the local planning authority (LPA) (or relevant EIA authority under associated consenting regimes) before May 16, 2017:

  • A request for an EIA screening opinion – depending on the nature of the project and anticipation of whether EIA is likely to be required.  For any screening request received before 16 May 2017 the ‘screening’ will be undertaken under the existing Regulations but any further EIA tasks (i.e. scoping, ES production and determination) will be subject to the new Regulations;
  • A request for an EIA scoping opinion – depending on whether a formal or informal approach to scoping the assessment is preferred (see Landmark’s article ‘Formal vs Informal EIA Scoping’.  The Screening and Scoping request can be combined as a single submission.   The existing Regulations will apply to the scoping, ES production and determination of any project for which a Scoping Request is made before 16 May 2017.
  • An application for development consent that is accompanied by an Environmental Statement – if the emerging project is sufficiently progressed to deliver a competent Environmental Statement.

What will changes after May 17 2017?

There have already been some changes to the UK EIA Regulations (The Town and Country Planning (Environmental Impact Assessment) (Amendment) Regulations 2015), with changed thresholds set for residential dwellings to determine when projects can be ‘screened out’ of requiring EIA (see ‘EIA Screening Threshold Changes’.

The key changes that will affect developers following transposition of the new EIA Directive into domestic law in May 2016 are as follows:

Key Changes Summary Potential implication to practice
Screening and Scoping Requests
‘Front loading’ preliminary assessment to the screening stage The information that a developer will be required to submit to support a request for a screening opinion will be significantly augmented (to include, for example, a project description, baseline, likely significant effects and consideration of cumulative effects with existing/approved projects, with more ‘holistic’ assessment topics). Likely increase in the cost and duration of the screening process
Inclusion of mitigation measures in screening requests. To include measures to avoid or prevent significant adverse effects (if not EIA).

 

Case law has already established that deliverable mitigation measures can be taken into consideration by the decision maker in reaching EIA screening decisions.  However, as this consideration will be explicitly included in the revised Directive, any consent applied to projects that are ‘screened out’ will be bound to include provisions to ensure the implementation of these measures. Very careful consideration must be given to inclusion of such measures at the screening stage.

 

Extension of time-frame of the screening decision

 

Proposed 90 days (from the date on which the developer has submitted all the requisite information). Possibility for extension in exceptional cases (in writing informing the developer of the reasons for the extension and the expected new date). Unclear – period not yet confirmed by the UK government.

 

Mandatory application of scoping advice

 

Currently, an applicant may seek a Scoping Opinion from the LPA to guide the scope of the EIA studies – this process is discretionary and the advice is not binding to either the LPA or developer.

Under the amended Directive, the scoping process will remain discretionary but once a Scoping Opinion is issued the EIA Report must be based on the scoping opinion.

Focused effort on specific scope of work set out in LPA Scoping Opinion, and on the depth of information required to demonstrate competent assessment of those matters, offers applicant opportunity to streamline cost and programme.  LPAs will need resources to ensure robust screening and scoping process.

 

Quality and Content of EIA process and Report
Quality controlled EIA Reports (previously termed Environmental Statements)

 

The output of the EIA process must be prepared by experts who are qualified and ‘competent.’

Decision-makers must ensure that they have appropriate expertise to examine the EIA Report and to ensure that it is complete, up-to-date and of high quality.

LPAs will need resources to ensure robust interrogation of the EIA Report.

Likely to give rise to more frequent requests to the applicant for updated information, particularly for phased developments and reserved matters applications.

Additional reporting content will be required

 

Requirement for EIAs to consider new assessment topics including human health, land, climate change and vulnerability to disasters, and additional emphasis on reporting of alternatives and the do nothing scenario.

Provide more information on operational phase (e.g. operational energy use and demand, quantities and types waste production) and cumulative effects.

Needs systematic approach to avoid increase in cost and duration of the assessment and reporting process.

 

Implications of change

The objective of the amendments to the EIA Directive is to reduce unnecessary administrative burdens and make it easier to assess potential impacts, without weakening existing environmental safeguards. This makes good sense.  Conflation of key EIA issues with other matters generates inflated survey effort and bloated Environmental Statements that add unreasonable cost for the applicant and are a burden on the receiving authority.

We believe that the changes do provide the mechanism for a more focussed EIA that concentrates on matters that are genuinely likely to give rise to significant environmental issues, rather than matters that can be dealt with via other supporting technical studies, outside of the EIA process.

Whether the amended Directive will achieve the intended streamlining of process remains to be seen, however, and the irrevocability of the Scoping opinion under the amended measures, in particular, raises concern at this stage.

With more assessment topics to be covered, focused EIA scoping will be vital to meet the overall objectives of the Directive and emerging Regulations, and to avoid unduly onerous requirements on the applicant.  Whilst there are undoubtedly many local planning authorities capable of providing well considered and balanced EIA scoping opinions, the additional effort required to deliver the quality of the output after May 2017 will demand specialist skills and expertise from the decision maker at a time when many LPA’s are reeling from punishing budget cuts.

We would be very interested to hear your views, and how you are preparing for the new measures.

Please contact Gemma Melvill or Bernice Roberts at:

Gemma.Melvill@thelandmarkpractice.com

Bernice.Roberts@thelandmarkpractice.com

 

 

 

 

 

 

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