With time looking like it would run out, the Government has finally issued draft Regulations to incorporate into English law the requirements of the new European Directive on environmental impact assessment ("EIA") (Directive 2014/52/EU). All those involved in development or infrastructure projects should be aware of the implications, and the steps that need to be taken now to ensure that planning permissions and development consent orders stand up to scrutiny.
The 2014 Directive amends the existing Directive from 2011 (2011/92/EU) and each member state of the European Union (which still includes the UK for now!) is required to transpose its requirements into domestic law by 16 May 2017.
Transposition into English law seems to have been low on the Government's list of priorities following the Brexit referendum, but draft Regulations were finally published for consultation on 14 December. Whilst the Regulations are still only in draft and subject to change, this should finally provide the guidance and certainty that is needed, and avoid unnecessary work and a potential increase in challenges to planning permissions.
There is a sense that the draft Regulations have been introduced reluctantly and only the "minimum changes necessary" are to be made to the existing EIA Regulations of 2011 (as amended) to make them compliant with the 2014 Directive. However, the changes are still significant.
Projects that will have to be assessed in light of the new requirements will quickly become the norm, but it is possible to take 'procedural steps' to remain within the existing regime, even in the case of planning decisions that are made after 16 May 2017. Those procedural steps would have to be taken before 15/16 May 2017 and would entail submitting a request for an opinion as to whether a development project requires EIA (a "screening opinion"), submitting a request for an opinion as to the scope of an EIA (a "scoping opinion"), or submitting an environmental statement.
Where any procedural steps are not taken before the deadline and a decision on a planning application is issued after the new Regulations take effect (which is likely to be 16 May 2017, but could be before then), the requirements of the new Regulations will apply.
A definition of the EIA process will be enshrined in the legislation for the first time. Whilst most of the defined components of the EIA process have been good practice for some time, the overall process will be extended and it will comprise: the preparation of an environmental statement, a 30-day consultation exercise (up from 21 days), and examination of the environmental statement by the council so that reasoned conclusions on the likely significant effects can be drawn. It will also entail securing the proposed mitigation measures in the permission or section 106 agreement, and subsequent monitoring to ensure compliance with those mitigation measures. The monitoring requirements will therefore extend the EIA process beyond the decision-making stage.
The aim of the 2014 Directive idea is to streamline the EIA process, but it will create more work at the earlier stages of the application process. The new screening and scoping procedures should help to reduce unnecessary EIA work and improve the quality of environmental statements where they are required, but the downside is that those procedures will become more complex and onerous.
If screening for EIA is undertaken, considerably more information will have to be submitted at that stage than before. The additional information will include impacts from waste and use of natural resources, impacts on climate change and resilience to climate change, and impacts on cultural heritage and landscape. Resource efficiency and sustainability, biodiversity protection, and risks of major accidents and disasters will also have to be considered.
Councils will be required to give their main reasons for both positive and negative screening opinions to make the process more transparent. The time–limit for councils to provide a screening decision is likely to remain three weeks, but it could be extended by agreement to up to 90 days.
The 2014 Directive and the draft Regulations clarify that mitigation measures can be taken into account in screening decisions. If a decision not to require an environmental statement takes those mitigation measures into account, those measures will need to be secured by any subsequent planning approval, and compliance will have to be monitored by the council. Although this is currently common practice, the changes serve to emphasise the need for mitigation measures to be secured properly and non-compliance could increase the chances of a challenge to the permission.
The process of determining the scope of an environmental statement will become more important and the environmental statement must be based on, and comply with, the scoping opinion. The increased importance of the content of a scoping report and the additional areas to be covered will add significantly to the amount of work that will need to be undertaken at an earlier stage in the application process. However, this should have the benefit of creating greater certainty and result in environmental statements that are streamlined and focus only on aspects of the development that will give rise to significant environmental effects. The additional work undertaken at the scoping stage may also reduce the time taken to prepare environmental statements and the cost of the work at that stage.
To ensure the quality and consistency of environmental statements, the 2014 Directive requires that they will have to be prepared by 'competent experts' who are appropriately qualified. In turn, councils will need to ensure that they have access to sufficient expertise to examine the environmental statements. The draft Regulations do not clarify who those experts will be, but established environmental/planning consultants with a track-record in the field would be a safe bet.
If procedural steps can be taken before the deadline to remain within the existing regime, it would be beneficial to take them. Otherwise, it is essential that the implications of the 2014 Directive and the new Regulations are taken on board and reflected in the EIA process for future schemes.
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