ENVIRONMENTAL IMPACT ASSESSMENT (EIA)REGULATIONS 2017WHAT YOU NEED TO KNOW

WHO ARE ADAMS HENDRY?• Founded in 1992.

• One of the largest teams of independent specialist town planners in Southern England.

• Thorough understanding of current Environmental Impact Assessment legislation, guidance and case law.

• Corporate Member of the Institute of Environmental Assessment and Management (IEMA).

• Founding members of the EIA Quality Mark.

• Assist with EIA Screening/Scoping and Prepare and Review Environmental Statements.

WHAT HAS CHANGED AND WHY?

• A new set of EIA regulations have come into force in England (separate Regs. for other parts of the UK and Major Infrastructure): Town and Country Planning (Environmental Impact Assessment) Regulations 2017.

• Effective from 16th May 2017 with transitional arrangements in place for EIA procedures that have been commenced prior to this date.

• Transpose the 2014 amended EIA Directive into UK Law (long term implications of Brexit unknown).

• As minimal change as possible made to comply with the EU Directive but changes that have been made will increase responsibilities and pressure on LPAs.

WHAT IS EIA DEVELOPMENT?

“The aim of Environmental Impact Assessment is to protect the environment by ensuring that a local planning authority when deciding whether to grant planning permission for a project, which is likely to have significant effects on the environment, does so in the full knowledge of the likely significant effects, and takes this into account in the decision making process.

The regulations set out a procedure for identifying those projects which should be subject to an Environmental Impact Assessment, and for assessing, consulting and coming to a decision on those projects which are likely to have significant environmental effects.”

Planning Practice Guidance, 2017

WHEN IS ENVIRONMENTAL IMPACT ASSESSMENT REQUIRED?

• ‘Screening’ is a procedure used to determine whether a proposed project is likely to have significant effects on the environment.

• The local planning authority should determine whether the project is of a type listed in Schedule 1 or Schedule 2 of the 2017 Regulations:• if it is listed in Schedule 1 an Environmental Impact Assessment is required in every case;

• if the project is listed in Schedule 2 (other than exempt development e.g. national defence) and exceeds the thresholds, the local planning authority should consider whether it is likely to have significant effects on the environment (’screening’).

• Any development of a description in Schedule 2 located in, or partly in, a ‘sensitive area’ also needs to be screened, even if it is below the thresholds or does not meet the criteria (e.g. SSSI, National Park, European Site, Scheduled Ancient Monument, Sites on World Heritage List, AONB.)

EIA PROCESS

Issuing an EIA Screening Opinion for Schedule 2 developments (is EIA required or not?).

Issuing a Scoping Opinion (if requested).

Consultation on an EIA Application (the Environmental Statement).

Examining the submitted Environmental Information.

Reaching a Conclusion on the Significance of Effects.

Issuing a Decision Notice.

Key Basic Steps for LPAs in dealing with EIA Applications

SO WHAT’S CHANGED?

1. More Front Loading at EIA Screening stage.

2. Scoping Opinion Binding.

3. New Environmental Topics for assessment.

4. New requirements for EIA process.

5. EIA and HRA must be coordinated.

6. LPAs to have ‘sufficient expertise’ to examine the Environmental Statement.

7. Consultation Timeframes.

8. Decision Notices to set out reasoned conclusions.

9. Monitoring Requirements Post Consent.

10. Avoiding Conflicts of Interest

EIA SCREENING: EIA DEVELOPMENT OR NOT?

• Front loaded the EIA process (Schedule 2 Projects).

• More detailed information and comprehensive appraisal required at EIA screening stage.

• More specific requirements to be submitted with an EIA screening request (Regulation 6 (2)).

• Most notably the applicant can identify any measures to avoid or prevent what might otherwise have been significant effects adverse effects on the environment.

• Intention to ensure more proportional assessment and fewer EIAs.

NOTABLE CHANGE TO SCHEDULE 2 THRESHOLDS

• Schedule 2 sets out descriptions of development and applicable thresholds to define Schedule 2 Developments (to be screened for EIA).

• The Town and Country Planning (Environmental Impact Assessment) (Amendment) Regulations 2015 amended the threshold for screening industrial estate development projects raising this from ‘areas exceeding 0.5 hectares’ to ‘areas exceeding 5 hectares.’

• The new 2017 Regulations retract this amendment:

Schedule 2

10. Infrastructure projects

(a) Industrial estate development projects; The area of the development exceeds 0.5 hectare.

• Note that the thresholds for ‘Urban Development’ (Part10) remain unchanged from amended 2015 Regulations (as it relates to the no. of dwellings and/or size of the development).

EIA SCREENING: TIMESCALES AND DECISIONS

• Timescales for issuing an EIA Screening Opinion remain at three weeks (21 days) or if agreed in writing, a longer time not exceeding 90 days.

• If in exceptional circumstances, a longer period is required, notice must be given to the applicant, stating the reason for the extension of time and the date when a decision can be expected.

• Changes to the information to be set out in Screening Opinions (Reg. 5 (5)).

Screening Opinion Notices must:

1. State main reason for conclusions with reference to Schedule 3.

2. If determined no EIA is required, state any features of the proposed development and measures envisaged to avoid, or prevent what might otherwise have been, significant adverse effects on the environment.

SCOPING OPINION• Requesting a scoping opinion remains voluntary.

• However, where an opinion is issued, there is now a requirement to base the Environmental Statement on that opinion:

An Environmental Statement must “be based on the most recent scoping opinion or direction issued (so far as the proposed development remains materially the same as the proposed development which was subject to that opinion or direction).”

So, a scoping opinion, if requested, now carries more weight in determining the content of the ES but, this does not preclude the LPA from requesting further information if necessary (under Reg. 25).

Remember the focus should be on “likely significant effects” rather than just “main effects” or “significant adverse effects”. Ensure Environmental Statements are focused so that they are shorter and more relevant.

NEW EIA TOPICS FOR ASSESSMENT

• Human Health

• Climate Change

• Vulnerability to risks of Major Accidents and/or Disasters

• Biodiversity

The EIA’s potential scope is broader.

Most new topics have been rebranded rather than being wholly new.

EIA PROCESSCHANGES TO WHAT INFORMATION SHOULD BE INCLUDED IN AN ENVIRONMENTAL STATEMENT (SCHEDULE 4).

Matters that are worthy of note:

• an assessment of reasonable alternatives (e.g. development design, technology, location, size and scale), reason for selecting chosen options and comparison of effects (where alternatives have been considered).

• description of the likely evolution of the ‘baseline scenario’ without the development.

• assessment of any transboundary effects (impact on other EEA States).

• description of forecasting methods/evidence used/difficulties encountered and reference list detailing sources used.

Most of this is current best practice.

EIA AND HRA TO BE CO-ORDINATED • Requirement for LPAs to ensure that EIA and Habitats Regulation Assessments are

co-ordinated where there is a requirement to carry out both.

• “Habitats Regulation Assessment” means an assessment under regulation 61 of the Conservation of Habitats and Species Regulations 2010 (assessment of implications for European sites and European offshore marine sites).

(Note that these Regulations have been updated and consolidated, effective from 30th November 2017: The Conservation of Habitats and Species Regulations 2017 - now Regulation 63).

• It is considered that coordinated procedures will provide flexibility for developers.

• The implications of this change are expected to be minimal as typically considered best practice.

COMPETENT EXPERTS AND SUFFICIENT EXPERTISE

The Environmental Statement must be prepared by

competent experts.

• The Developer must provide a statement outlining the relevant expertise or qualifications of such experts as part of the Environmental Statement.

• No definition of “competent expert” in the Regulations.

The relevant planning authority or Secretary of State must ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement

CONSULTATION TIMEFRAMES

• The new minimum timeframe for public consultations on EIA applications has been increased.

From 21 days(28 days for

infrastructure projects)

‘to no shorter than 30 days’

• This timeframe applies to both new applications and the submission of further environmental information.

INFORMATION TO ACCOMPANY DECISIONS

Decisions notices must:

• Reach a reasoned conclusion on the significant effects of the proposed development on the environment based on an examination of the environmental information.

• Include conditions to which the decision is subject.

• Include a description of any features of the development and any measures envisaged to avoid, prevent, reduce and, if possible, offset likely significant adverse effects on the environment.

• Identify monitoring requirements.

Also note new duties to inform the public of final decisions (Regulation 30)

MONITORING REQUIREMENTS

• LPAs required to determine procedures for the “monitoring of significant adverse effects on the environment.”

• Monitoring requirements must be ‘proportionate’ to the nature, scale and size of the development and significance of environmental effects (i.e. duration/type of monitoring required).

• Conditions can be used to ensure the implementation of mitigation measures and to monitor their effectiveness.

• LPAs should avoid duplication and use existing, established monitoring arrangements, where appropriate, rather than imposing a monitoring measure.

OBJECTIVITY AND BIAS

• New Regulation 64 makes explicit the need for objectivity.

• LPAs must performs its duty in an objective manner to avoid giving rise to a conflict of interest.

• Must ensure there is a “functional separation” between those bringing forward a development proposal and those responsible for determining that proposal.

SUBSEQUENT APPLICATIONS

• Planning consent must not be granted for subsequent EIA development (e.g.. including discharge of conditions, S73 and Reserved Matters Application) unless:

• the environmental information remains up to date.

• the original ‘reasoned conclusion’ on the EIA remains valid.

• No further significant environmental effects are likely to arise from the proposal.

• If not, then further environmental information should be requested and an ES addendum/supplementary information may need to be submitted.

TRANSITIONAL ARRANGEMENTS

2017 EIA Regulations came into force on 16th May 2017 but transitional arrangement are in place.

EIA Regulations 2011 will continue to apply to as the basis of determining planning applications where, prior to 16th May 2017:

• an ES has been submitted;

• an EIA scoping opinion has been requested.

Parts 1 and 2 of the EIA Regulations 2011 continue to apply to:

• requests for an EIA screening opinion or;

• where a LPA has initiated the making or adoption of an EIA screening opinion if prior to 16th

May 2017. Thereafter the new regulations apply.

WHAT DOES IT ALL MEAN FOR LPAS?

Increased Responsibility (sufficient expertise/decision making)

Increased Pressure (EIA screening and scoping)

Cost implications (need for external resources/monitoring commitments/tracking applications)

Be alert to legal challenge (follow the right procedures)

Note Planning Practice Guidance has been updated to provide some further clarity

EIA SCREENING

• Expect more comprehensive screening requests – more time/resources required?

• Is there sufficient expertise in-house to reach a decision within 21 days (preferable) or up to 90 days?

• Focus on whether there is potential for likely significant environmental effects and not simply “potential significant effects on the environment”.

• Check all relevant information has been provided. Need to request additional information?

• If external consultation is required, ensure there is established protocols/good working relationships with consultation bodies to avoid undue delay.

• EIA Screening Checklist has been made available by Planning Inspectorate which might be useful (https://www.gov.uk/government/publications/environmental-impact-assessment-screening-checklist).

EIA SCREENING: INCREASED RISK OF LEGAL CHALLENGE?

• Increased potential for legal challenge if mitigation is relied on to screen out EIA? No public Consultation at EIA screening stage.

• Ensure reason for the decision is sufficiently detailed and can be fully justified should it come under scrutiny.

• Remember to follow up mitigation/monitoring measures when application is submitted (secured via condition).

SCOPING OPINIONS

• Ensure scoping opinions are reasonable and proportionate (not any longer than is necessary to properly assess effects).

• Should focus only on the “likely significant” environmental effects.

• Consider what should be included in the ES and what could be dealt with as a separate, standalone report (for non-significant effects) for validation purposes.

• Too much information is a hindrance to decision-making.

SCOPING OPINIONS

• Internal/external consultees need to understand the need for proportionality. Response should be bespoke to the development and not a standard list of requirements.

• Agree alternatives and cumulative schemes with the developer.

• Remember the ES will be based on the scoping opinion.

HAVE YOU GOT SUFFICIENT EXPERTISE?

• Have you got, or do you have access as necessary to, sufficient expertise to examine the environmental statement?

• Is there a need for training?

• What additional resources do you need?

• Do you need the help of external bodies? What arrangements are in place?

• What about new EIA topics? What expertise is available?

• Competent Experts – Need to be satisfied that the

ES has been prepared by competent experts. No more guidance from DCLG in PPG at present.

DECISION MAKING

• Changes demand a more robust approach to decision making.

• In reaching a ‘”reasonable conclusion” on the significant effects of the proposed development remember that ‘environmental information’ includes the ES and any other information/representations received (Reg. 2).

• Consider adopting a template or checklist to ensure all relevant requirements are reported on in decision notices?

• Need to raise awareness of requirements amongst staff and Members.

• Make sensible use of planning conditions to control any likely significant effects of the development, based on the ‘environmental information’ without replicating other pollution control regimes.

MONITORING AND DECISION MAKING

• New requirement to set out monitoring measures linked to the conclusions of the ES.

• Avoid monitoring measures that create additional need for resources and use existing monitoring regimes wherever possible.

• How will the results of monitoring be reported on? Frequency/duration/by what method? Who will review? How will requirements be enforced? What if mitigation does not achieve desired outcome?

• Be alert to PD rights:• If development proceeds under PD rights, after having been screened for EIA, then the onus is on

the developer to ensure that any mitigation/monitoring relied on is carried out during construction/operation. LPAs may need to take appropriate action if development proceeds on a different basis to that which has been screened.

TRANSITIONAL ARRANGEMENTS

• Need to be careful that the right EIA Regulations are being followed.

• Carefully record whether EIA Scoping Requests and ES’s have been submitted prior to 16th May 2017. If so, follow the 2011 EIA Regulations. New monitoring regimes required?

• Fully brief staff.

• Scope for error and risk of legal challenge potentially high.

HOW WE CAN HELP IF NEEDED?

• Corporate Member of the Institute of Environmental Assessment and Management (IEMA) and Members of the EIA Quality Mark - ‘a critical friend.’

• Act as case officer for major EIA Applications, including writing committee reports and attendance at planning committees.

• Prepare and Review Environmental Statements including coordinating consultation with statutory bodies.

• Assist with EIA Screening and Scoping Requests.

• Advice on planning conditions and s106 agreements to mitigate likely significant, environmental effects.

• Training for Members.

• General advice and assistance with all development management matters.

ANY QUESTIONS?

QUESTIONS?

What do you think will be the main implications of the changes for service delivery?

Do you have sufficient expertise in-house or access to it?

How many EIA applications do you typically receive in a year?

How do you think the scope of pre-application discussions with major developers may need to change (scoping)?

What arrangements do you have with consultation bodies? Do these need to be strengthened?