Government consults on environmental impact assessment changes in England

DCLG intends to make the minimum changes necessary to the existing EIA regulations in order to bring them into line with the EU's revised 2014 EIA Directive. This is because the existing approach is "well understood by developers, local planning authorities and others involved in the procedures", and keeping changes to a minimum "will also minimise familiarisation costs and business uncertainty", it said.

EU member states are required to implement the necessary changes in their own laws by 16 May 2017.

DCLG has published two sets of draft regulations for consultation: one relevant to the town and country planning regime; and one relevant to the nationally significant infrastructure planning regime established by the 2008 Planning Act. Changes will also need to be made to the EIA regulations applicable to project types that fall outside of these regimes including some energy, port and highway projects, but these changes will be taken forward by other government departments.

Infrastructure planning expert, Nick McDonald of Pinsent Masons, the law firm behind Out-Law said that the "proposal is to fully replace the current English regulations with new 2017 regulations from 16 May 2017. The new EIA requirements flowing from the revised 2014 directive will not apply until this time, so there could be benefit to developers undertaking scoping or submitting environmental statements before that date. That said, many authorities are likely to start to apply parts of the new draft regulations even where a project is not strictly caught".

The devolved administrations of Scotland, Wales and Northern Ireland are responsible for transposing the amendments in respect of devolved planning matters. The Scottish Government published its own plans for transposition in August, as did the Welsh Government.

EIAs assess a development project's likely significant effects on the environment. They must be carried out if the project is listed in Annex 1 of the EIA Directive or, if the project is listed in Annex 2 of the directive, only if the project is judged to give rise to significant environmental effects. The 2014 Directive aims to improve the level of environmental protection provided by the EIA process with a view to making business decisions on public and private investments more sound, predictable and sustainable in the longer term, while at the same time simplifying the regime in line with the EU's on-going drive for smarter regulation.

The 2014 directive introduces a definition of the EIA process. It is DCLG's view that this definition reflects existing practice in England. Changes have been made to the regulations to incorporate the new definition. However, the government intends to retain the existing term 'environmental statement ' and does not propose to replace it with the term 'EIA report' used in the directive as this is unfamiliar.

Minimum information that must be provided in an environmental statement has been prescribed by changes to the regulations and DCLG are looking for views on what impact this change will have. DCLG's preliminary view is that it is "likely in practice that all of the issues listed in the amended Annex should already be included in an environmental statement, where it is considered to be relevant to an assessment of the likely significant effects of development".

Pinsent Masons planning expert Jamie Lockerbie said: "It is likely to be the case that the content of environmental statements will not change radically following the introduction of Schedule 4 of the proposed new regulations, which covers information for inclusion in environmental impact assessment statements."

"However, one big change is the requirement to include in the environmental statement, where it is relevant to the development proposed, 'any proposed monitoring arrangements', for example the preparation of a post-project analysis,” he said.

"The question most will be asking is 'what happens if the proposed mitigation measures are not working as expected'? Applicants will no doubt be reluctant to agree to further, contingent, mitigation measures, whereas LPAs may feel obliged to secure measures that in some way respond to a situation where the monitoring reveals that a particular mitigation measure has failed or is not performing as expected. It will be interesting to see what the consultation responses reveal in relation to this particular point,” said Lockerbie.

A new requirement for the environmental statement to be prepared by persons who "in the opinion of the competent authority, have sufficient expertise to ensure the completeness and quality of the environmental statement" has been incorporated into the regulations, reflecting the requirement in the 2014 directive that this must be prepared by 'competent experts'. The statement must also include a statement setting out how the requirement for sufficient expertise has been met. DCLG has chosen not to define 'competent expert' any further, "both because it is considered to be a sufficiently clear term, but also because it is likely to depend on the individual circumstance of each case". In terms of consultation timeframes for the environmental statement, changes to regulations will set a new 30 day minimum requirement.

Changes to the current EIA regime to standardise the process for screening proposals have been made; and DCLG has stated that it is anticipated that "more developers will seek to demonstrate that their project will not be likely to have significant environmental effects through earlier consideration of mitigation or avoidance measures", taking into account the circumstances of a given project. The issues that must be considered as part of the screening process have been clarified but the term 'preliminary assessment' has been omitted by the government.

The changes made will require reasons for a determination on screening to be stated, including if the determination is that an EIA is not required, any features of the proposed development and measures "envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment", clarifying matters that must be included in a determination that EIA is not required. This replaces the requirement for an authority to provide a 'written statement' giving "clearly and precisely the full reasons for its conclusion". DCLG also proposes to retain the requirement for a screening opinion to be provided within three weeks, or a longer period if agreed. However, the changes will ensure that this longer period does not exceed the 90 day requirement in the directive other than in exceptional circumstances.

The new regulations retain the provision for a developer to seek a scoping opinion if they choose. They also add a new requirement that, where a scoping opinion has been requested, the environmental statement should be "based on" that opinion. The regulations will refer to the environmental statement being "based on the most recent scoping opinion or direction issued" and DCLG has clarified matters to confirm that this only applies "so far as the proposed development remains materially the same as the proposed development which was subject to that opinion", in order to take account of situations where the details of a project change after a scoping opinion has been made.

DCLG has opted to introduce a coordinated, rather than joint, procedure where assessments are required simultaneously under the EIA rules and the Habitats and/or Birds Directive. This approach will require designation of a lead authority to coordinate the assessments and will "provide the greatest flexibility for developers around the phasing and timing" of assessments, reflecting "existing practice" in England, according to DCLG.

New information requirements relating to decisions granting consent will be incorporated into the regulations for the competent authority's "reasoned conclusion" to be integrated into any decision, with mitigation and monitoring measures to be identified. In DCLG's view, a "reasoned conclusion should be considered up to date if the competent authority is satisfied, having regard to the current knowledge and methods of assessment, that the reasoned conclusion addresses the likely significant effects of the development on the environment".

Amongst the changes to be made to the regulations as a result of the 2014 Directive is a new requirement to consider expected effects deriving from the vulnerability of the project to major accidents or disasters, including those caused by climate change. There are also changes to some of the terminology used to describe environmental factors where they are likely to be significantly affected by the project. English regulations will include a reference to the need to consider, where appropriate, relevant "operational" impacts "for the sake of clarity".

The consultation closes on 1 February 2017.