New EIA Regulations for England

Eco friendly lakeside with neighbouring residential estate

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 were laid before Parliament on 19 April and came into force on 16 May 2017. This follows a period of consultation on the draft regulations early this year.

The publication of the new regulations reflects the Government’s legal obligations with respect to EU Directive 2014/52/EU.

Below, we present the transitional arrangements and key changes.

Transitional arrangements

Projects which are the subject of a (duly made) Screening Opinion request prior to 16 May 2017, shall be ‘screened’ under the existing 2011 EIA Regulations.

Projects which are the subject of a (duly made) Scoping Opinion Request or for which an Environmental Statement has been prepared and submitted to the determining authority, prior to 16 May 2017, shall be considered under the existing regulations.

Screening  

There are no changes to the Schedule 2 screening thresholds above which the requirement for EIA must be considered, with the exception of industrial estate development projects where the threshold has been reduced from 5 to 0.5 hectares. The Regulations also identify more specific requirements as to the information to be included in screening opinion requests.

These include a requirement to provide a description of the likely significant effects of the proposed development on the environment and any mitigation measures designed to avoid or prevent the occurrence of significant environmental effects.

This provision introduces an opportunity to avoid EIA by front loading the assessment and committing to mitigation and monitoring early in the process. It will be important to ensure that any commitments made at this stage are deliverable as they are likely to be carried through and imposed as conditions to any planning permission which is subsequently granted.

There is no change to the timescale within which a Local Planning Authority or the Secretary of State is required to provide a Screening Opinion (three weeks). Whilst an extension of time may be agreed with the person promoting the development this period may not exceed 90 days. Presently, there is no limitation on time extensions.

In our view requests for extensions of time may become increasingly common, particularly in response to Screening Opinion requests which contain commitments to mitigation which are aimed at avoiding the occurrence of significant effects.

Scoping

Where a Scoping Opinion is requested and provided, the Environmental Statement must be based on the opinion.

This will require those promoting EIA developments to manage the scoping process proactively and to scrutinise Scoping Opinions very carefully to ensure that subsequent Environmental Statements address all issues. This is already commonplace amongst competent practitioners.

In certain circumstances it may be advisable to seek a revised Scoping Opinion where the detail of a proposed development has materially changed since the original Scoping Opinion was issued.   

Topics falling for consideration within the scope of an EIA have been widened and now include “human health”, “climate” and “biodiversity”. There is also a requirement to consider risks to the environment from accidents or disasters. IEMA has recently published guidance on addressing health impacts and the effects of climate change within an EIA context.

The focus remains on the assessment of likely significant environmental effects. The extended range of issues will be relevant to some developments. In others an assessment of effects may be capable of being scoped out.

Where requested, Scoping Opinions must be issued by the Local Planning Authority within five weeks (as existing).

Environmental Statements

An Environmental Statement (ES) must be prepared by “competent experts” and accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts.

The term ‘competent expert’ is left undefined and in reality an ES is rarely prepared by one individual. In the circumstances, we would suggest that the details and qualifications of the Project Manager and the lead author for each chapter of the ES be agreed with the Local Planning Authority at scoping stage.

Schedule 4 (1) contains more detail as to the necessary information to be included within an ES whilst Schedule 4(2) details the enhanced requirements with respect to consideration of alternatives. Schedule 4(3) requires the ES to include a description of baseline conditions as they are predicated to obtain in the ‘do-nothing’ scenario.

Decision makers must ensure that they have sufficient expertise to examine the ES. This may result in more authorities seeking to engage external consultants to review the ES or parts thereof, particularly in respect of larger, more complex projects. In turn this may also result in more requests for Planning Performance Agreements whereby the person promoting the development is requested to cover the cost of the external advice to the LPA.

When granting planning permission for developments to which an ES relates, the relevant planning authority or Secretary of State must reach a reasoned conclusion on the significant effects of the development. They must also consider whether it is appropriate to impose monitoring measures.

Overall, the new Regulations introduce a range of additional requirements and care will need to be exercised in the preparation of EIAs to ensure regulatory compliance.

Further information

For further information or a discussion on how the 2017 Regulations may affect your development proposals please contact Mark Worcester (Director and Head of EIA) on 0161 233 7676 or Helen Tilton (Associate Director) 0117 989 7000. Turley are accredited by IEMA.  

IEMA sustainability logo

18 May 2017