Environmental Impact Assessment

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Chapter 16

Environmental Impact Assessment

I NTRODUCTION

16.1 This chapter deals with the legislation covering environmental impact assessment (EIA).

16.2 The process of EIA in the context of town and country planning is governed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017¹(EIA Regulations 2017).²These regulations apply to development which is given planning permission under Part III of the Town and Country Planning Act 1990.³The EIA Regulations 2017 consolidate, with amendments, the provisions of the EIA Regulations 2011.

16.3 The EIA Regulations 2017 apply the amended Directive 2014/52/EU⁴‘on the effects of certain public and private projects on the environment’. They apply

¹SI 2017/571, which came into force on 16/5/2017. The Town and Country Planning

(Environmental Impact Assessment) (Wales) Regulations 2017 came into force on the same date. The new regs are based on a revised Directive 2014/52/EU.

²The EIA Regulations 2017 revoke the Town and Country Planning (Environmental Impact

Assessment) Regulations 2011 (EIA Regulations 2011) where appropriate, subject to certain transitional arrangements contained in the EIA Regulations 2017, reg 76, which provide that the EIA Regulations 2011 continue to apply where, before 16/5/2017, a person or body has submitted an Environmental Statement (ES) or has requested a scoping opinion, or in respect of a local development order an LPA has prepared an ES or a scoping opinion, or requested a scoping direction. The screening provisions set out in the EIA Regulations 2011, Pts 1 and 2 will also continue to apply to requests for a screening opinion or direction made or initiated before 16/5/2017.

³See NPPG at Paragraphs: 004 Reference ID: 4-004-20170728 to 016 Reference ID: 4-016-20170728, where the types of development covered by the EIA Regulations 2017 are set out in detail.

⁴Usually referred to as the ‘Environmental Impact Assessment Directive’ to the planning system in England. The main changes from the EIA Regulations 2011 are: (a) to the circumstances in which a project may be exempt from EIA regulation; (b) to the introduction of co-ordinated procedures for projects which are also subject to assessment under European Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora or European Directive

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only to certain types of development and can even apply to permitted development. The local planning authority (LPA), the Secretary of State or an inspector must not grant consent for EIA development unless an EIA has been carried out.⁵

16.4 The screening thresholds for industrial estate development and urban development projects were raised in April 2015 as set out in the Annex to the guidance on the EIA Regulations 2011. Projects which are wholly outside sensitive areas and do not exceed the revised screening thresholds are not Schedule 2 development and should not be screened by the LPA. Where the LPA has, prior to 6/4/2015, screened a project which does not exceed the relevant revised threshold and has determined that it is EIA development, it will continue as such. It remains, as usual, open to the applicant to request that the Secretary of State issues a screening direction to determine whether a development is likely to have significant effects on the environment. Subsequent applications in relation to development which was determined to be EIA development prior to 6/4/2015, but which is below the thresholds introduced in 2015, should continue to be treated as EIA development.

PURPOSE OF EIA

16.5 The aim of EIA is to protect the environment by ensuring that an LPA, 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.⁶The EIA Regulations 2017 set out a procedure for identifying those projects which should be subject to an EIA and for assessing, consulting and coming to a decision on those projects which are likely to have significant effects on the environment.

2009/147/EC of the European Parliament and of the Council on the conservation of Wild Birds (the Birds or Habitats Directives); (c) to the list of environmental factors to be considered as part of the EIA process; (d) to the information to be provided to inform a screening decision and the criteria to be applied when making a screening decision; (e) to the way in which an ES is to be prepared, including an amendment to the information to be included in it, the introduction of a requirement that it should be based upon a scoping opinion (where one has been obtained) and a requirement that it is to be prepared by a competent expert; (f) to the means by which the public is to be informed of projects which are subject to the EIA process, and (g) the introduction of a requirement for decision-makers to avoid conflicts of interest.

⁵Regulation 3.

⁶Regulation 4, which sets out the EIA process, namely, the preparation of an ES and the carrying out of any consultation, publication and notification required by the EIA Regulations 2017 or any other enactment in respect of EIA development.

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16.6 EIA will only apply to a small proportion of projects. LPAs already have a well-established general responsibility to consider the environmental implications of developments which are subject to planning control. The EIA Regulations 2017 integrate EIA procedures into this framework and should only apply to projects which are likely to have significant effects on the environment. Pre-application engagement is also clearly important in identifying when, and in what respects, a proposal should be subject to an EIA.

OVERVIEW OF EIA

16.7 The EIA process has five broad stages: screening; scoping; preparing an Environmental Statement (ES); making a planning application and consultation; and decision-making.

Screening ⁷

16.8 This is determining whether a project falls within the remit of the EIA Regulations 2017 (i.e. whether it is likely to have a significant effect on the environment and therefore requires an EIA). A ‘screening opinion’ is a written statement of the opinion of the LPA as to whether development is EIA development. A ‘screening direction’ is a direction made by the Secretary of State as to whether development is EIA development. Screening should normally take place at an early stage in the design of the project. However, it can occur after a planning application has been made or even after an appeal has been made.

Scoping

16.9 This is determining the extent of the issues to be considered in the assessment and reported on in the ES. An applicant can ask the LPA for its opinion on what information needs to be included. This is called a ‘scoping opinion’. Scoping directions may also be made by the Secretary of State.⁸

Preparing an Environmental Statement

16.10 The ES must include at least the information reasonably required to assess the likely significant environmental effects of the development listed in regulation 18(3) and comply with regulation 18(4).⁹An applicant must ensure that

⁷EIA Regulations 2017, Pt 2 (regs 5–7), which deals with screening.

⁸Pt 4, regs 15–16.

⁹Berkeley v Secretary of State for the Environment, Transport and Regions [2001] 2 AC 603); the

ES may consist of one or more documents, but it must constitute a single, accessible and easily

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the ES is prepared by competent experts. The ES must be accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts.¹⁰The LPA must also make available any relevant environmental information in their possession.¹¹

Making a planning application and consultation

16.11 The ES must be publicised electronically and by public notice. The statutory consultation bodies and the public must be given an opportunity to give their views about the proposed development and the ES.

Decision-making

16.12 The ES must be taken into account by the LPA and/or the Secretary of State in deciding whether or not to grant consent for the development.

comprehensible compilation of the relevant environmental information. It was also essential that the ES should be made available to the public and the public...