The purpose of the 2017 Regulations is to transpose the 2014 amended Environmental Impact Assessment Directive into UK Law. While there has been a lot of speculation about how extensive the amendments would be, the government took the decision to adopt the minimal changes necessary in order to conform to the Directive.
This article explores the amendments, highlighting what steps developers and local authorities will need to take to comply with the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (which apply in England only) and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (which extend to Wales and Scotland).
What are the key changes?
1. Screening procedures
The list of information to be submitted with a screening request is mandatory in the new Regulations and more detailed. Additional information to be submitted includes a description of the following:
- the physical characteristics of the development and any demolition works
- the location of the development and environmental sensitivity of the affected areas
- the environmental aspects which are likely to be affected by the development and where available, those resulting from expected residues, emissions and the production of waste and the use of natural resources.
The existing three week time frame for receiving a screening opinion will remain, but will be subject to a 90 day limit for an extension of time, to be agreed in writing between the parties.
2. Binding scoping opinions
At present it is good practice for an Environmental Statement to comply with a scoping opinion. Under the new Regulations, the Environmental Statement must be based on the scoping opinion, where one has been requested (they remain voluntary).
3. Environmental factors
The list of environmental factors to be considered as part of the EIA process has changed – “human being” has been replaced by population and human health, “fauna and flora” has been replaced by biodiversity and there is a new requirement to consider the effects on the environment arising from the vulnerability of the development to the risks of major accidents and disasters as well as impacts from waste or use of natural resources, impacts on and resilience to climate change and impacts on cultural heritage and landscape.
4. Competent experts
The Regulations introduce a new requirement for EIAs to be produced by competent experts. Developers must therefore instruct competent experts and the Environmental Statement should be accompanied by a statement from the developer outlining the relevant expertise. The authority must also ensure it has sufficient expertise to review the Environmental Statement. The Regulations do not define 'competent' so this is likely to be an area open to interpretation.
5. Consideration of alternatives
Some commentary on the new Regulations suggests there is a new requirement in relation to the consideration of alternatives. The new Regulations amend the wording slightly but do not significantly change the position.
The existing Regulations require an Environmental Statement to include "an outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for the choice made, taking into account the environmental effects.” The new Regulations require an Environmental Statement to 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.”
6. Consultation timeframes
The current minimum timeframe for public consultation is 21 days for TCPA projects and 28 days for DCO projects. This will increase to a period of “no shorter than 30 days” for both new applications and the submission of further or additional environmental information.
7. Coordinated procedures
There is a new requirement for the consenting authority to ensure that a coordinated approach is taken for EIA projects that are also subject to assessment under the Habitats Directive.
8. Decision notices
A new article sets out the content of decision notices including consideration of whether monitoring measures are required. The decision maker must also be satisfied that the Environmental Statement is up to date before determining the application.
What happens to existing EIA applications in the system?
The key question on everyone’s mind is what happens to existing EIA applications in the system? The existing Regulations will be revoked from 16 May 2017, subject to the following instances where they will continue to apply:
- Where an Environmental Statement has been submitted or a scoping opinion has been requested before 16 May 2017
- Parts 1 and 2 apply to requests for screening opinions and directions, screening opinions adopted by the planning authority or made by the Secretary of State where the request was made or the opinions or directions were made before 16 May 2017.
Developers should therefore consider whether there is any advantage in submitting scoping requests before 16 May 2017 in order to operate under the existing Regulations.
For advice or further information on the new EIA Regulations, please contact either Liz Dunn or Sarah Sutherland.