There was much discussion about the EIA Regulations last year. Amendments to the European Directive, intended to ‘simplify and harmonise’ procedures were discussed and debated and finally drawn down, for England, into the 2017 EIA Regulations (The Town and Country Planning (Environmental Impact Assessment) Regulations 2017).
Arrangements were put in place to manage the transition of projects that were already in the pipeline but now, almost a year on, it’s safe to say that the 2017 EIA Regulations have fully landed.
So where does that leave us? Fundamentally, the EIA process remains the same, but some of the changes are having a significant effect on the way that EIA information is being gathered and presented.
Selected key changes from the 2017 EIA Regulations:
Changes to Schedule 2 (10a and b) Thresholds: Changes in the thresholds were framed with the intention of rationalising the need for EIA of specific types of development, including residential schemes, and the Government predicted an 80% reduction in EIAs by increasing the thresholds to exclude smaller developments. This will clearly reduce the number of Schedule 2(10) EIAs submitted to LPAs, unless in ‘sensitive areas’ with anticipated savings in cost/time for developers and LPAs alike. The proof will be in the pudding …
Screening: The 3 week timeframe for screening opinions now carries a potential extension to 90 days. Although not intended to be the norm, this is now possible. The applicant must also now provide more detailed and specific information at the screening stage. Schemes will therefore need to be reasonably well progressed prior to Screening, with technical data available on ‘EIA matters’ to guide the screening decision (see Scope of EIA below). This emphasis, intended to reduce numbers of EIA schemes and achieve more proportionate assessment, is so far proving to be a double edged sword. Enhancing the information available at screening should help to screen out ‘marginal’ EIA development, but also frontloads the costs of assessment work to what would have previously been more akin to a ‘feasibility stage’.
Experience to date, however, shows that frontloading of information has enabled consideration of mitigation to avoid impacts – and therefore potentially avoid exposure to the increased pre-determination costs and timescales generated by the need for EIA. In order to reduce risk of legal challenge on this matter, it is vital that applicants and their professional teams ensure that mitigation proposed during screening, and relied upon to ‘screen out’ the need for EIA, is tracked and demonstrably delivered via any permissions granted.
Scoping: Remains voluntary but, once a Scoping Request is made, the ES must be based on the resultant Opinion. Whilst it is has long been good practice for an ES to comply with the scoping opinion, this explicit requirement could potentially reduce project flexibility if, for example, a scheme is subsequently amended, from that submitted for scoping, to avoid specific effects. To minimise risk of legal challenge, scoping departures will inevitably become a much more formal process. If for no other reason, this highlights the importance of ensuring that adequate time is invested in scoping discussions with the LPA to guide reasonable and proportionate assessment.
Alternatives: There is a stronger requirement to describe alternatives studied by the developer (Reg 18(3)(d) and schedule 4, para (2)). The ES must include: “A description of the reasonable alternatives (for example in terms of development design, technology, location, size and scale) studied by the developer, which are relevant to the proposed project and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects” (our emphasis). The question of what happens if the developer has not ‘studied’ ‘reasonable alternatives’ remains open.
Logical interpretation of Reg 18(3)(d) is that some level of data gathering and interpretation must be undertaken to identify and consider the environmental effects of alternatives studied, but it is likely that legal challenge will contribute to finding the correct interpretation on this point. Until clarity is achieved, however, thorough and well-documented consultation with the LPA is recommended on this matter.
Expanded scope of EIA: The potential scope of EIA assessments has arguably increased to include human health, climate change, land take, biodiversity and vulnerability of the project to major accidents/disasters. The list of ‘EIA matters’ is clearly not exhaustive (for example, transport is not referred to) and should not be treated as such. Neither should the regulatory scope be seen as a ‘shopping list’ to be adhered to in full to avoid all potential effects. Such a formulaic approach conflicts with the purpose of the amended regulations.
Competency: An ES must be prepared by “competent experts” but there is currently no objective measure for this attribute. It is safe to say that demonstrable experience is needed, with relevant professional accreditations. It is also wise to confirm lead authors for ES technical chapters with the LPA when scoping. LPAs must themselves ensure that they are equipped to review the quality of ESs. Whilst this should help to ensure that LPA advice and processes are sound, it will add to the LPAs resource burden.
EIA/HRA coordination: The regulations emphasise need for coordination, where relevant, of Habitats Regulations Assessment (HRA) and EIA processes. This is already both good practice and sensible – data gathering and assessment work for these regimes inevitably overlap.
Determination and Monitoring: Requirements for determination are now clearly set out by Regulation 26 and, whilst these largely reflect previous requirements, they now include duties on the LPA to take into account its own supplementary examination, to be integrated into the decision, to consider imposition of monitoring and to be satisfied that the information is ‘up to date’. The wise applicant team therefore will ensure that data gathering is robust and fit for purpose. To minimise risk of 3rd party challenge it is also important to ensure that the LPA output is sound and compliant with the regulations.
So where do we stand now?
The 2017 EIA Regulations were intended to streamline and harmonise. Previous EIA case law documented that it is to nobody’s advantage, whether applicant, local authority or objector, if ESs are ‘purely defensive’. Such an approach obscures key issues by including every possible scrap of environmental information just in case someone might consider it significant at a later stage (R(Blewett)vDerbyshire cc[2004] EWCA civ 1508).
But here lies the rub. Legal grey areas are settled by case law. For several years the main point of challenge for EIAs has been the screening stage, with projects ‘screened out’ at greatest risk of falling foul of legal nuance. Frontloading of data means that there have been relatively few ‘meaty’ screening requests made so far under the 2017 EIA Regulations. Case law has yet to be seen and is unlikely to emerge for some time yet. Meanwhile the 2017 regulatory changes need to be treated with caution. Applicants are advised to engage in thorough and recorded consultation with the LPA to agree a robust path though the EIA process. This is particularly important in setting the scope of alternative site assessment, demonstrating the competency of an EIA team and agreeing scoping departures.