Our series of topical EIA articles in advance of the May 16th deadline for significant changes in UK EIA process continues with consideration of when developers should be considering screening for EIA.
Screening for EIA – the critical first step
The process of Environmental Impact Assessment (EIA) is encountered by most developers of major schemes as a procedure that allows potential significant environmental effects of development proposals to be taken into account in decision-making. The need for EIA in such cases can only be avoided where it can be demonstrated that there will be no likely significant effects on the environment.
The UK has at least 22 sets of EIA Regulations but, in practice, 80% of EIA activity is dealt with via planning and related Regulations. EIA Screening is the first step of the EIA process, wherein the local planning authority (LPA) determines whether the project requires EIA. Screening is also the most common area for legal challenge of process and subsequent decisions. It is important, therefore, that the applicant can be confident that the planning authority’s screening decision is both reasonable and robust.
When to screen
Sufficiently early to inform project feasibility …
At Landmark we recommend that an EIA screening request is made at an early enough stage in project creation that any EIA requirements can inform project feasibility and be accommodated within the project programme. Should the LPA screening opinion be positive, and EIA be required, there will be implications for the project timeline including time needed for required technical studies, Environmental Statement (ES) preparation, and the (currently) 16 week planning determination period. There may also be cost implications, with EIA commonly requiring reporting effort in the ES greater than for a non-EIA planning application.
Notwithstanding the more detailed requirements of the EIA regime, the process need not be unwieldly if it well managed. The savvy developer recognises that, as the first step in the process, EIA Screening should not be treated as a last-minute ‘box ticking’ exercise.
… but technical reporting can support your case …
There are, however, benefits to delaying the request to the LPA for a Screening Opinion whilst technical reports are prepared and the scheme is advanced to the point where technical assessment and reporting can ‘fill in the blanks’, giving certainty about impacts. Scheme evolution should respond to these reports, not least because adapting to circumstances and minimising effects on the receiving environment will benefit the developer by streamlining the path through planning and minimising future obligations.
… and don’t forget the new Regulations.
The transposition of the amended EIA Directive into UK Regulations, which must be completed on or before 16 May 2017, raises an important consideration for timing of projects that are due to enter planning in 2017. The new Regulations require submission of a standardised suite of information required when requesting a screening opinion / direction, and the status of the project within the EIA process on 16 May will dictate whether the screening request will be dealt with, in part or in full, under the existing or new Regulations. What does this mean in practice?
EIA Screening – transitional arrangements
Developers who are bringing forward planning applications in 2017 need to consider the best time to submit their EIA screening (and scoping) requests to the LPA, as the timing will make a considerable difference to the information required by the LPA to validate the request. Local planning authorities must also be aware of the transitional arrangements, and ensure that screening is undertaken in accordance with the correct Regulations.
Screening request submitted prior to 16 May 2017
- The screening for EIA will be considered under the existing (2011, as amended) Regulations.
- Any further stages of the EIA will be considered under the new Regulations unless a combined EIA screening and scoping request is submitted to the LPA before 16 May.
Screening request submitted on or after 16 May
- The request will be determined under the 2017 Regulations and must be supported by an extended suite of information
Although thresholds for screening development are unchanged under the new Regulations, there is now a requirement on LPAs to state the main reasons for their conclusion and, if the opinion is that the scheme is not EIA development, the mitigation measures proposed to avoid significant adverse effects must be described in the screening opinion.
The 2017 EIA Regulations
Our article of October 2016 sets out the key changes across the spectrum of the EIA process, including the greater focus on the information needed to inform screening, and the need to adhere to the most recent EIA Scoping opinion received.
Whilst it is clear that the amended Directive and new UK Regulations will add complexity and, at least initially, workload to the EIA process, there’s no need for developers or planning authorities to panic. Many of the changes proposed by the 2017 Regulations are currently undertaken by environmental planners as ‘best practice’, developed in response to case law and to ensure a robust screening decision.
Interpretation of the new Regulations will be, however, be untested by Case Law and, given that the timescales for an LPA to adopt a screening decision could be significantly extended, there is merit in applicants who are able to make the most of the existing Regulations and submit screening and scoping requests before 16 May.
Chart your course
The approach to screening for EIA will vary from scheme to scheme, according to financial and programme issues, the location and type of the project depending, and on developer approach to risk. If you are unsure of the best strategy, seek the advice as early as possible of a qualified and experienced EIA ‘competent expert’. As of 16 May, the 2017 Regulations will require all EIAs to be prepared by a competent expert and LPAs must also have access to sufficient expertise to examine the EIA. Landmark’s environmental planners are qualified to help you to identify the best route for your scheme, to set the groundwork carefully and to advise on your EIA screening strategy with the implications of 16 May 2017 firmly in mind.
For further information, contact Gemma Melvill or Bernice Roberts at:
Gemma.Melvill@thelandmarkpractice.com
Bernice.Roberts@thelandmarkpractice.com