setting the scene
Scotland was first, followed by Wales back in the Autumn and now it is England’s turn. The DCLG and Defra have commenced its technical consultation on transposing the 2014 amended EIA Directive into UK law. Following this consultation, we will see a new set of EIA Regulations to replace the current Town and Country Planning EIA Regulations 2011 and the Infrastructure Planning (EIA) Regulations 2009. These are expected no later than 16 May 2017.
The consultation lasts for 7 weeks, expiring on Wednesday 1 February 2017.
The consultation document can be viewed here
what are the key changes?
- Screening - local authorities are still required to adopt a Screening Opinion within 3 weeks, but any extension of time is now restricted to no longer than 90 days;
- Binding Scoping Opinion – scoping will remain voluntary for developers but the Environmental Statement (ES) will be required to be ‘based on’ the most recent Scoping Opinion – where one is issued;
- Environmental Statement – the ES Report will no longer be amended to the ‘EIA Report’, as initially proposed back in 2014;
- Emphasis on Environmental Topics – a new requirement to consider potential effects derived from the vulnerability of projects to risks of relevant major accidents or disasters, including those caused by climate change;
- Mitigation and Monitoring – greater emphasis on mitigation measures during the screening stage and environmental monitoring of significant adverse effects post-consent;
- Revised Timescales – public consultation on the ES Report has been extended and should be no shorter than 30 days (currently 21 days for consultation under the town and country planning system and 28 days under the infrastructure planning system);
- ‘Sufficient Expertise’ – local authorities shall ensure that it has, or has access to, sufficient expertise to examine the ES Report. The ES Report must also now be prepared by persons who in the opinion of the local authority have sufficient expertise "to ensure the completeness and quality of the environmental statement". The ES Report will be required to include a statement setting out how this requirement has been met; and
- Decision Making – competent authorities must ensure that any mitigation and/or monitoring measures are identified and carried through to any consent.
In parallel, Defra has also commenced consultation on five other EIA regimes: Forestry (England and Wales), Agriculture (England), Water Resources (England and Wales), Land Drainage Improvement Works, and Marine Works.
The consultation document for the five EIA regimes can be accessed here
Whilst there are no huge surprises, and government have sought to make minimal changes to the current regime, the changes proposed, do however place more onerous requirements on future EIA development projects.
There is a clear drive to front-load the EIA process to ensure that EIA Screening Requests are comprehensive and describe early environmental considerations to ‘design out’ potential significant adverse environmental effects and proposed mitigation measures post-consent. This is positive but it does mean the design of projects will either need to be sufficiently progressed at an early stage or it places greater emphasis on multiple screening throughout the preparation and determination of a development project.
The ES Report will be required to be ‘based on’ the most recent Scoping Opinion (where one is issued). We would therefore advise early pre-app discussions with local authorities to pre-empt concerns prior to scoping.
Emphasis on new environmental topics has been introduced in the absence of any clear guidance. This may raise questions about what is relevant and what should be scoped in or out of the ES Report – particularly in lieu of ‘sufficient expertise’ in local authorities to review the ES Report.
There is also greater emphasis on monitoring of significant adverse environmental effects, and clarity on the mechanisms by which these will need to be secured. It is our view that we will start to see more planning conditions which seek to pin down deliverable mitigation and monitoring measures, as set out in the ES Report.
Government has sought not to define the term ‘competent experts’ in respect of those persons responsible for preparing an ES Report. Instead it has been left to the opinion of the determining authority to conclude whether the persons preparing the ES Report have 'sufficient expertise, to ensure the completeness and quality of the environmental statement’. We believe this remains poorly defined, and could therefore be susceptible to challenges.
Lastly, it is important to note that transitional arrangements will be in place, and therefore if you have EIA projects coming through in the first half of 2017, in order to ensure these projects are considered under the current 2011 Directive/Regulations, the ES must either have been submitted or a Scoping Opinion sought before 16 May 2017.
WHAT HAPPENS NEXT
Bidwells will be responding to this consultation, and will be circulating a more detailed analysis of the changes and the implications for your development projects early in the new year.
For more information, please contact our IEMA accredited practitioners: