Draft EIA Regulations 2017: An Overview
On 14 December 2016 DCLG released the technical consultation on plans for amending the Environmental Impact Assessment (EIA) Regulations for planning and major infrastructure. The changes are required to transpose the 2014 amendments to the EIA Directive into English law, a process that needs to be completed on or before 16 May 2017.
Whilst DCLG has sought to minimise the number of changes to the existing Regulations, several have the potential to add complexity and/or make EIA even more prone to challenge, certainly in the short term.
Screening determination – there is a question as to whether a screening determination would be open to challenge in the event that the mitigation envisaged to avoid or prevent significant effects changes between the time that the opinion is given and an application is submitted (i.e. that the specified mitigation is included in a different form to take account of design changes). This could result in a rise in the number of requests for screening opinions submitted to local authorities.
Assessment scope – the changes will result in increased EIA scope, specifically in relation to human health and the vulnerability of the project to risks of major accidents and/or disasters. The extent to which new issues need to be taken into account will only become clear once the changes are inacted and further guidance is available, though the consultation does make clear that the EIA should still be focussed on likely significant effects as opposed to all possible effects.
Determining the scope – it is unclear at this stage whether all information requested in a scoping opinion will be required to form part of the ES or whether any unreasonable requests can be acknowledged but rebuffed, and not covered in detail. If the former, there will need to be better consultation between local authorities and developers prior to the scoping opinion being issued to avoid unnecessary examination of perceived issues.
Competent experts – this is perhaps the most significant of the proposed changes. There is a risk of delay and costs for a developer should the planning authority disagree with the credentials of those undertaking the EIA, but also a risk that objectors may look to call into question the competency of local authority to determine an application for ‘EIA development’. The change will undoubtedly lead to improvements in the quality of EIA, with it no longer being viewed by some as something that can be ‘bolted-on’ to the services of other non-specialists within project teams.
Consultation timeframes – it should be borne in mind that the increase in timescales for public consultation to 30 days will apply to both new applications and the submission of further environmental information.
Up-to-date reasoned conclusion – this has the potential to present problems where there is a long gap between the submission of the environmental information and a decision being taken, and also where ‘subsequent applications’ (e.g. Section 73 applications) are being determined in relation to EIA development.
Transitional arrangements will be in place such that projects that have commenced before the changes come into effect will continue under the existing Regulations, i.e. where a request for a scoping opinion is submitted before the new Regulations come into force.
Environmental Planning and Assessment
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