The New EIA Regulations 2017

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 come into force today.

The new Regulations implement EU Directive 2014/52/EU amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment.  That Directive was issued on 16 April 2014, so the changes in the new Regulations have been anticipated for some time now.

One of the stated objectives of the 2014 Directive was to reduce the burden on developers and decision makers by focussing EIA only on the most significant impacts and by speeding up the consenting of projects.  The basic framework of the EIA system remains intact and the changes as implemented in the new Regulations are not particularly onerous, but they are numerous.  Whether or not they will have any discernible impact on the speed of the planning process remains to be seen.

The main substantive changes from the 2015 Regulations at a glance are:

• Alternatives:  The ES must now 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” (Schedule 4, para. 2).  This replaces the less onerous requirement in the 2011 Regulations of an “outline of the main alternatives studied by the applicant or appellant an indication of the main reasons for the choice made, taking into account the environmental effects” (Schedule 4, para. 2).

• Significant effects to now include disaster/accident vulnerability:  Significant effects to be assessed include the “expected significant effects arising from the vulnerability of the proposed development to major accidents or disasters that are relevant to development (Regulation 4(4))”.

• More information required with requests for screening opinions.  Regulation 6(2) requires a greater level of detail in the information required to accompany screening opinions.  For instance, “a description of any likely significant effects of the proposed development on the environment resulting from (i) the expected residues and emissions and the production of waste, where relevant and (ii) the use of natural resources, in particular soil, land, water and biodiversity” is now specifically required.

• Changes to deadlines:  Under Regulation 6(6) a local planning authority can agreed to extend its response to a screening opinion to up to 90 days (beyond the current 21 days) and can extend the period further in exceptional circumstances (Regulation 7(5) makes a similar change to deadlines for the Secretary of State in relation to screening directions).  Regulation 19(6) prevents an EIA application being determined until at least 30 days after copies of the EA were served on consultation bodies (it was previously 14 days). The LPA must make available a copy of the ES for at least that same period.

• Scoping opinions/directions are now binding.  An ES now must “be based on the most recent recent scoping opinion or direction issued (so far as the proposed development remains materially the same as the proposed development that was subject to that opinion or direction”.  This is a new requirement – previously there was no formal requirement for an ES to be based on the conclusions of a scoping opinion or direction).

• Levels of expertise for preparation and examination of ES.  During the consultation process, one of the issues raised was whether a local planning authority should “verify” the competency of the experts proposed to be used by the developer to prepare the ES. This requirement seems to have been dropped in the final Regulations: the requirement is simply for the developer to ensure that the ES is prepared by “competent experts” and the EA has to be accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts (Regulation 18(5)).  Under Regulation 4(5) a LPA or the Secretary of State has to ensure that they “have, or have access as necessary to, sufficient expertise to examine the environmental statement”.

• Conflicts of interest/determining of own applications. There are now express provisions in requiring local planning authorities or the Secretary of State not to find themselves in a situation giving rise to a conflict of interest.  When determining thier own proposals, the Regulation expressly requires appropriate administrative requirements to ensure a “functional separation” between those proposing the development and those determining that proposal (Regulation 64).