Existing environmental impact assessment regime will continue to apply if request for scoping opinion made before 16 May, regulations confirm

New EIA regulations, which were laid before parliament on 19 April, clarify transitional arrangements set out in a draft as a result of concerns raised during the consultation process, according to planning law expert Victoria Lindsay of Pinsent Masons, the law firm behind Out-Law.com.

Lindsay explained that, during the consultation period, respondents were concerned that the wording of the transitional arrangements "would have meant that an application for consent would have had to have already been lodged or received before the new EIA regulations came into force, with either an environmental statement (ES) or a scoping opinion in place, in order for the current EIA regime to continue to apply".

"This would have meant that applications that were not lodged before the EIA regulations came into force would have needed to comply with the new EIA regulations even though an ES could have been all but finalised under the current regime," she said.

"The issue has now been resolved so that where a scoping opinion has already been requested, or an application or an ES submitted, before the commencement of the new EIA regulations, the previous EIA regulations and regime will continue to apply. Therefore, on schemes where applicants are relatively close to being able to submit a request for a scoping opinion, they should consider whether to crack on and do so before 16 May so that the application will be considered under the certainty of the current EIA regulations," she said.

The new regulations will implement the EU's revised 2014 EIA Directive into English law. The devolved administrations of Scotland, Wales and Northern Ireland have transposed the amendments in respect of devolved planning matters separately.

The current EIA processes will not be fundamentally changed by the introduction of the new regulations, according to Lindsay. Rather, the main changes "relate to more front-loading at the screening and scoping stages, with the intention of fewer EIAs overall and more proportionate assessment, to be based on the scoping opinion".

"Marginal EIA applications may actually benefit from the new EIA regulations and might not require an EIA to be carried out," she said.

"The amendments, however, will see increased pressure on planning authority resources, likely to come at the expense of the developer: for example, with increased requests for the appointment of suitably competent external consultants on behalf of the local planning authority; and decision notices needing to be up to date based on the latest evidence and to include mitigation measures and environmental conditions," she said.

Developers should bear in mind that the UK's decision to leave the EU did not affect the coming into force of the EIA regulations, despite the fact that they relate to an EU directive.

"The UK remains a member of the EU until exit negotiations have concluded and is therefore bound to implement the EIA Directive into UK law," she said.

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 EIA 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 ongoing drive for smarter regulation.