- A legal definition of EIA
- Screening Revisions
- Scoping Revisions and Revised Topics
- Requirements for Competent Experts and Sufficient Expertise
- Requirement for ES examination
- Focus on Monitoring
- Increased requirements on LPAs
The core goal of the European Commission in the amendment to the EIA Directive was to maintain the level of existing protection established under the previous EIA Directive. They aimed to attempt to drive effective EIA across the EU via three key themes; harmonisation between member states, efficiency to streamline multiple EU assessments and reduce burdens, and to focus on quality, moving away from a purely procedural focus on EIA laws.
EIA Directive History
It has been a long road for these changes to the EIA process to come into force in the UK. The process started in 2009 with the EU EIA Effectiveness Review, which, after lengthy consultation, resulted in the original EIA Directive (85/337/EEC) and its subsequent three amendments (97/11/EC, 2003/35/EC, 2009/31/EC) being consolidated into a single new EIA Directive (2011/92/EU). This ‘new' Directive was in fact not new at all; it was just a consolidated version of the existing rules. The process to amend, or improve, the EIA Directive then began in earnest with EC proposals for revising the Directive launched in 2012, before finally being agreed as the EIA Directive amendment in 2014 (2014/52/EU). Once approved by the EU, the amended irective went into the European Journal on the 16th of May 2014, which started the three-year transposition countdown for the UK to implement the Directive by the 16th May 2017.
New Definition of EIA
Previously the EIA Directive did not explicitly define what the EIA process was. There was plenty of room for disagreement as to what aspects or activities where part of the EIA and which were part of separate processes, such as consultation. The new regulations include a new definition of EIA which states (see Regulation 4) that the EIA is a process consisting of the preparation of the environmental statement, any consultation, publications or notifications, and all the steps taken during the determination of an application.
The screening process has seen some changes. The new regulations require a greater depth of information and assessment at the screening stage. Under the previous rules, screening only needed a plan and a description of the development. The new process requires in addition to this the sensitivities of the proposed location, the aspects of the environment likely to be significantly affected and a description of likely effects, as well as any mitigation proposed in relation to those potential effects, to be detailed.
Much of this information has traditionally not been provided until the scoping phase, however, under the new regime, these aspects need to brought forward to the screening phase. These changes require the earlier engagement of advisors and consultants and change the development programme timing, as well as budgets required to progress the screening phase. However, this should in theory reduce effort at the scoping phase, as some of the ‘scoping’ activities have been brought forward. It should also flag up early issues and potentially avoid developers spending greater sums on developing inappropriate sites and designs.
Other key changes include an emphasis on allowing/encouraging mitigation and avoidance measures to be identified in screening that would reduce the likelihood of significant effects. These mitigations can then be taken into account as part of the screening decision. However, the responsibility remains on the local planning authority (LPA) to ensure that these mitigations, if relied upon to screen out EIA, are then carried into the planning application, monitored and enforced. If an LPA screens out EIA development, based on mitigations proposed at screening, and those mitigations are not subsequently carried out, then the planning permission is open to challenge on the basis that it required EIA (even though it has a letter screening EIA out – if that decision was based on commitments to mitigations that were not carried out).
There are also some revisions to screening timeframes, with three weeks to adopt a screening opinion/direction and an option to extend to 90 days or as may be agreed in writing. There is also encouragement for screening to take account of other assessments, such as Strategic Environmental Assessments.
The scoping amendments include a wider list of potential issues to be considered, including; population and human health, biodiversity, land, soil, water, air, climate, material assets, cultural heritage, landscape and major accidents/disasters. It should be stressed that this is not a list of topics to include in an EIA, it is a list of topics that should be considered! Each of these parameters needs to be considered in light of the nature of the proposed development, and the particular nature of the development site and any interactions with other systems, processes, or sites. Scoping should be used to remove issues that are not likely to result in significant environmental effects and focus the assessment on the issues that may result in significant effects.
One additional aspect that has been added to the regulations with regard to scoping is the requirement to base the ES on the most recent scoping decision 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). This seems at first to be common sense, but this now has legal underpinning due to the change of wording in the new regulations. This is also complicated by the iterative nature of the EIA process. Therefore if there is a material change to scope during the EIA process it is important to get written confirmation from the LPA to provide a direction amending the scoping opinion. If such a direction is not obtained there would be potential grounds for challenge on the basis that the scope of the EIA was not based on the scoping decision. Please note that the wording is ‘based on’ rather than ‘in accordance with’ and therefore there is leeway for minor variations without recourse to a formal direction from the LPA.
Similar to the screening process, the regulations encourage mitigation and avoidance measures that will reduce the likelihood of significant effects to be set out in the scoping stage. Where mitigation and avoidance measures are identified that satisfactorily address a particular topic, these topics would not need to be assessed in great detail in the Environmental Statement, provided that the mitigations are successfully carried out, monitored and enforced.
Requirements for the use of Experts
The new regulations require developers to use ‘competent experts' to undertake the EIA. As a long-term champion of the professionalisation of environmental assessment, I welcome this change as it requires developers to demonstrate the use of appropriately qualified professionals. Royal HaskoningDHV demonstrates this both corporately via our membership of the IEMA EIA Quality Mark scheme, which is underpinned by an external independent audit, as well as our expert's personal, professional accreditations and qualifications such as Chartered Environmentalist and full membership of institutes such as IEMA and CIEEM. We also have individual members accredited to the EIA Practitioner Register maintained by IEMA. This external recognition is in addition to our internal training and development and our use of internationally recognised quality management systems such as ISO 9001 and ISO 14001.
In addition to the requirements for developers to use competent experts, LPAs are now required to use ‘sufficient expertise’ in the examination of the EIA. Similar to the process as set out above for consultants, it is expected that LPAs and statutory consultees and government advisors should be appropriately qualified and experienced in undertaking reviews and examining the contents of EIAs. The requirement to demonstrate expertise is a source of concern for many LPAs given the cuts to budgets of many of these departments and the lack of resource within national advisory bodies to provide support. I predict a widening of the use of planning performance agreements (PPAs) to fund this additional advisory support.
Other key changes for LPAs
A few other key highlights of the changes for the planning authorities include an extended consultation period, from 14 days to 30 days, and decision notices now need to include; reasoned conclusions on the ES, conditions, mitigation measures, monitoring measures, or reasons for refusal, and also inform the Secretary of State, the consultation bodies and the public.
Enforcement, widely seen as a weak area of UK practice, sees a boost with a requirement on the LPAs to secure compliance with the requirements and objectives of the Directive. This last requirement is potentially the most significant change to practice, with cash-strapped authorities now under a duty to monitor and enforce mitigation and ensure development impacts are in line with those set out in the EIA process. Expect court cases to follow.