EIA legislative changes
The revised Directive and the new Regulations
(and new thresholds)
Toby Fisher
Summary
• The revised EIA Directive
– 12 March 2014
– Needs to be implemented by 2017
• The new EIA Regulations
– 12 March 2015
– In force from 6 April 2012
The New Regulations:
what do they mean for developers?
Background
• Structure of the EIA Regulations
– All development falling within the descriptions in Schedule
1 to the Regulations must have an EIA
– All development falling within the descriptions in Schedule
2 to the Regulations must be screened to assess whether
the development is likely to have significant
environmental effects.
• The screening process is therefore aimed at determining
whether or not a project requires EIA. The lower the
thresholds, the more robust the safeguards; but the higher
the administrative burden.
Proposals for change
• Proposal to raise screening thresholds first set out in 2012
Autumn statement as part of suite of proposals to reduce
‘unnecessary bureaucracy’ from the planning system and to
make it ‘faster and more efficient’
• Technical consultation on proposals to raise screening
thresholds carried out between August and September 2014
• Key amongst the changes was the proposal to raise the
screening threshold for residential dwellinghouse
development from 0.5 ha to 5 ha.
• The government predicted that this change to dwellinghouse
development would cut the number of screenings of English
residential development proposals from around 1,600 a year
to about 300, a fall of around 80 per cent.
The Town and Country Planning
(Environmental Impact Assessment)
(Amendment) Regulations 2015
• Amendment to thresholds for Schedule 2 development to the
2011 Regulations.
• In particular, amendments to paragraph 10 (a) – (c) in the
Table
The thresholds compared
Description
New threshold
Old threshold
(a) Industrial estate
development projects
The area of the development
exceeds 5 hectares.
The area of the development
exceeds 0.5 hectare.
(b) Urban development projects,
including the construction of
shopping centres and car parks,
sports stadiums, leisure centres
and multiplex cinemas;
(i) The development includes
more than 1 hectare of urban
development which is not
dwellinghouse development; or
(ii) the development includes
more than 150 dwellings; or
(iii) the overall area of the
development exceeds 5
hectares.
The area of the development
exceeds 0.5 hectare.
(c) Construction of intermodal
transhipment facilities and of
intermodal terminals (unless
included in Schedule 1);
The area of the development
exceeds 0.5 hectare.
The area of the development
exceeds 0.5 hectare.
Exceptions
• No change to development in sensitive areas where
thresholds do not apply for example in: National Parks, Areas
of Outstanding Natural Beauty, Special Areas of Conservation,
etc.
• Further, the Secretary of State can issue a screening direction
for any project irrespective of whether it falls above or below
the screening threshold. This includes in response to a third
party request.
Consequences for developers
• Overall a win for developers.
• However, 150 dwelling threshold was introduced to address
potential for high-rise developments under 5ha to have
significant environmental effects. Significantly, it was
introduced AFTER the figures published by government
predicting an 80% decrease in residential screening.
• 150 dwelling threshold may – in some cases – result in a
lower threshold than previously and more screening than
previously.
The New Directive
Introduction
• Directive 2014/52/EU of the European Parliament and of the
Council of 16 April 2014 amending Directive 2011/92/EU on
the assessment of the effects of certain public and private
projects on the environment
• Must be transposed by 16 May 2017
• Results in some changes to the architecture of the EIA system,
but has been significantly watered down from earlier
proposals, in the face of strong opposition (including from the
UK)
Objective
• Two stated objectives:
– Ensuring consistency of application across Member States
– Reducing the burden on developers and decision makers
by focusing EIA only on the most significant impacts and by
speeding up the consenting of projects
• Arguably, the revisions achieve the first; fail to achieve the
second
Competent Experts
• The revised Directive introduces a need for EIAs to be
produced by ‘competent experts’
• The term is not defined and Member States will have to come
up with their own definitions.
Screening
• Introduction of more specific information that developers will
have to provide at the screening stage (Annex IIA; Art.4(3))
• The required information includes:
– impacts from waste or use of natural resources;
– impacts on, and resilience to, climate change;
– impacts on cultural heritage and landscape;
– risks from major accidents or disasters.
• The Annex IIA list potentially establishes a need to submit a
‘mini-EIA’ at the screening stage.
Scoping
• Proposal for mandatory scoping was not implemented
• However, where a scoping opinion is requested from the
decision maker the EIA Report will need to be based on the
response (Art.5(1))
• At what stage should a developer seek a scoping opinion?
How much information to be given to support the request?
• Insufficient information could result in a scoping opinion that
– through risk aversion – goes well beyond that which is
reasonably required.
Content of the EIA Report (the ES)
• The revised Directive includes clearer requirements for
content on a number of areas, including (Annex IV):
– impacts on biodiversity, climate change, and landscape;
– vulnerability to accidents and disasters.
• These matters are generally addressed fairly comprehensively
in existing ESs, so are unlikely to require a substantial change
in practice in the UK (but may well do so elsewhere)
Content of the ES (cont)
• Consideration of alternatives
– This is perhaps the most significant amendment in terms
of content requirements
– Proposal to incorporate mandatory assessment of
reasonable alternatives (i.e. the SEA requirement) was not
pursued, but the revised directive requires (Art.5(1)):
“a description of the reasonable alternatives studied by
the developer”
– Includes alternatives including re: project design,
technology, location, size and scale (Annex IV, para.2)
Content of the ES (cont)
• “reasonable alternatives studied by the developer” or “the
developer should study all reasonable alternatives”?
• The text seems fairly clear, but will the CJEU agree?
• See C-567/10 Inter-Environnement Bruxelles ASBL v Region de
Bruxelles-Capitale [2012] Env. L.R. 30 for a ‘purposive
approach’ to SEA. CJEU interpreted “required” as not
meaning “required” but “regulated”, and ignored the travaux.
See the SC comments in R (Buckinghamshire) v SST [2014]
UKSC 3
Procedural amendments
•Increased potential for third party challenges?
– In the event of negative screening decision, the decision
will have to state which design and mitigation measures
must be included as part of the scheme for the scheme
not to be considered as being ‘EIA development’
(Art.4(5)(b).
– In the event of consent for EIA development, the Directive
now includes requirements for monitoring of
implementation of mitigation measures (Art.8a(4)).
Accordingly, enforcement of conditions no longer simply a
matter for the LPA.
Procedure (cont)
• Decision maker must be satisfied that the ES is “up to date”
before determining the application (Art.8a)
– What will this mean in the context of drawn out appeals;
reserved matters applications?
• Authorities must choose to either combine the EIA process
with "appropriate assessments" under the European Habitats
Directives or simply co-ordinate the assessments (Art.2(a)(3)).
What does this mean in practice? Commission to provide
further guidance.
Conclusions
• Basic architecture of the EIA system remains intact.
• New Regulations provide some substantive amendments to
screening thresholds, particularly re: residential development.
• New Directive raises possibility of substantial changes to
come. Proof will be in the transposition.