Environmental Impact Assessment

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Chapter 4

Environmental Impact Assessment

INTRODUCTION

4.1 This chapter deals with the legislation covering Environmental Impact Assessment (EIA) which is liable to arise on applications involving wind and solar energy installations in view of the significant environmental effects of such development. The review of EIA development in this chapter will be confined to what is relevant to wind and solar energy development.

4.2 The process of EIA in the context of town and country planning is governed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/1012) (‘the 2017 T&C Regulations’).¹These regulations apply to development which is given planning permission under Part III of the TCPA 1990.²The 2017 T&C Regulations consolidate with amendments the provisions of the 2011 Regulations. In Scotland the applicable regulations are the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 (SI 2017/102). In Wales the applicable regulations are the Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017 (SI 2017/567). The revised EIA regulations in the three home countries came into force on the same date.

¹In force on 16/05/2017. The 2017 T&C Regulations revoke the Town and Country Planning

(Environmental Impact Assessment) Regulations 2011 (SI 2011/1824) (‘the 2011 Regulations’), subject to certain transitional arrangements contained in 2017 T&C Regulations, reg.76.

²See NPPG at Paragraphs: 004 Reference ID: 4-004-20170728 to 016 Reference ID: 4-016-20170728, where the types of development covered by the 2017 T&C Regulations are set out in detail.

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4.3 The 2017 T&C Regulations apply the amended EU directive³‘on the effects of certain public and private projects on the environment’. They apply only to certain types of development and can even apply to permitted development. The LPA, the SoS or a planning inspector must not grant consent for EIA development unless an EIA has been carried out.⁴

4.4 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 2011 Regulations. 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 April 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 always remains open to the applicant to request that the SoS issues a screening direction to determine whether a development is likely to have significant effects on the environment such that an Environmental Statement (ES) would be required. Subsequent applications in relation to development which was determined to be EIA development prior to 6 April 2015, but which is below the thresholds introduced in 2015, should continue to be treated as EIA development.

PURPOSE OF ENVIRONMENTAL IMPACT ASSESSMENT

4.5 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

³EU Directive 2014/52/EU usually referred to as the ‘EIA Directive’ to the planning system in

England. The main changes from the 2011 Regulations 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 Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora or Council Directive 2009/147/EC of 30 November 2009 of the European Parliament and of the Council on the conservation of Wild Birds; (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 environmental statement 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.

⁴Reg.3.

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process.⁵The 2017 T&C Regulations 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.

4.6 In the non-energy sector EIA will usually 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 2017 T&C Regulations integrate EIA procedures into this framework and 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 EIA.

OVERVIEW OF ENVIRONMENTAL IMPACT ASSESSMENT

4.7 The EIA process has five broad stages:

(a) Screening:⁶this is determining whether a project falls within the remit of the 2017 T&C Regulations, i.e. whether it is likely to have a significant effect on the environment and therefore requires an ES. 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 SoS 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.

(b) Scoping: 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 SoS.⁷

(c) Preparing an ES: the ES must include at least the information reasonably required to assess the likely significant environmental effects of the

⁵Reg.4, which sets out the EIA process, namely the preparation of an environmental statement and the carrying out of any consultation, publication and notification required by the 2017 T&C Regulations or any other enactment in respect of EIA development.

⁶2017 T&C Regulations, Pt.2 (regs 5–7) which deals with screening.

⁷Pt.4, regs 15–16.

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development listed in regulation 18(3) and comply with regulation 18(4).⁸

An applicant must ensure that the ES is prepared by competent experts. It must also be accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts.⁹The LPA must also make available any relevant environmental information in their possession.¹⁰

(d) Making a planning application and consultation: 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.

(e) Decision-making: the ES must be taken into account by the LPA and/or the SoS in deciding whether or not to grant consent for the development.

WHEN IS AN ENVIRONMENTAL IMPACT ASSESSMENT REQUIRED?

4.8 The LPA (or the SoS) should determine whether the project is of...