New EIA Directive: take action before 16 May 2017

Submit your EIA planning applications / take other EIA action prior to 16 May 2017 to avoid additional EIA requirements under the new EIA Directive.

New EIA Directive

By 16 May 2017 the new EIA Directive (2014/52/EU) must be implemented in all Member States. The Brexit decision does not affect this – the UK, as an existing Member State, is still bound to implement this.

Scotland and Wales are currently consulting on the legislative changes needed to implement the new Directive. It is expected that a consultation in England will follow shortly.

In a number of respects the new Directive makes the EIA regime more onerous for developers and local planning authorities (see below).

What can a developer do to limit the impact of the new Directive?

1. Where you know that your project is to be treated as EIA development:

If you do one or more of the following before 16 May 2017, your project will be considered under the existing EIA rules even after after 16 May:

• Request a “scoping opinion” from the local planning authority ie an opinion to indicate what your Environmental Statement must cover;
• Submit an Environmental Statement to the local planning authority.

2. Where you are not sure if your project is EIA development and you want to request an EIA “screening opinion” from the local planning authority (ie an opinion as to whether your project is subject to EIA):

• If you request the screening opinion before 16 May 2017 the screening process will be conducted under the existing rules, so avoiding the additional screening requirements (this is likely to be a significant advantage in many cases);
• If you then decide that your project is EIA development, your project will be considered under the new Directive rules unless you can fall within 1. above.

How can Freeths LLP assist you?

We can assist you in:

• Advising on the EIA implications of your development project, particularly in light of the new Directive;
• Setting a development timetable to limit impacts of the new EIA Directive;
• Legally reviewing your Screening Reports / Environmental Statement / EIA Report to ensure compliance with the relevant legal requirements and so limiting the risk of EIA-based challenges from objectors;
• Guiding you (where relevant) on how to combine / coordinate your EIA Report and your shadow Habitat Regulations Assessments (HRA) under the Habitats / Birds Directives;
• Legally reviewing your shadow HRA reports, so limiting the risk of HRA-based challenges from objectors; and
• Advising on defending or bringing judicial review applications in relation to consents.

Detailed changes under the new EIA Directive

The following presents a summary of the key changes arising from the new Directive.

Screening requests

The EIA screening process is the process used to determine whether a proposed “Schedule 2” project is likely to have significant effects on the environment and, as such, whether it needs to be subjected to EIA. (Note that for Schedule 1 projects EIA is mandatory).

The screening process under the new Directive will be a more significant task than at present, both for developers and the local planning authorities.

At present the request for a screening opinion is a fairly simple procedure: a developer makes the request accompanied by a plan to identify the land and a brief description of the nature and purpose of the development and its possible environmental effects. The screening response is provided within 3 weeks unless a longer time period is agreed.

Under the new Directive the screening information to be provided by the developer is more extensive, as are the factors to be considered by the competent authority making the screening determination. In this way the new regime will require / encourage developers to “front load” the screening process with an extensive “screening report”, including details of a wider range of impacts than are currently required and including relevant mitigation measures. In this way the developer may be successful in having the project “screened out” so as to avoid the further EIA requirements. Whilst this is positive, the upshot is that many developers will have to prepare, at this early screening stage, what is essentially a “mini-Environmental Statement”, presenting a lot of information. Such a document will take longer, and be more expensive, to prepare than the present screening information.

The new Directive gives a maximum timeframe of 90 days for provision by the competent authority of a screening opinion. It is yet to be seen what time frame will be specified in our implementing legislation, but obviously a delay of 90 days would be significant.

Scoping requests

Under the new Directive, developers with projects which are EIA development will continue to have the option of requesting a “scoping opinion” from the planning authority to determine what the EIA Report must cover (note that the “EIA Report” is a new term for what is currently called the “Environmental Statement). The new EIA Report will then have to follow that scoping opinion.

EIA Reports

The EIA Report under the new directive will need to be a more extensive document than the present “Environmental Statement”, covering additional topics: such as biodiversity (rather than flora and fauna), climate change, disaster / accident risks (such as flooding), cumulative impacts with other existing / approved projects and more detailed information on the operational phase of development.

The EIA Report will have to present the reasonable alternatives studied by the developer, covering for example project design, technology, location, size and scale; and the main reasons for the option chosen.

The EIA Report will have to be prepared by “competent” people.

The minimum period for public consultation on the EIA Report will be 30 days (it is currently 21 days under domestic legislation).

The competent authority must ensure that it has access to sufficient expertise to examine the EIA Report.

Interface with Birds / Habitats Directives

Where projects need to comply with both the EIA Directive and the Habitats / Birds Directives, there will need to be a joint or coordinated approach. In the UK, a coordinated approach is most likely to be selected in the implementing legislation.

Decision making

Local planning authorities will have a duty to consider whether the EIA Report is up to date before determining the planning application. This may give rise to more requests by local planning authorities for developers to provide updated environmental information (this may become a particular factor in the case of reserved matters applications following outline consent).

Local planning authorities granting consent for a EIA project will have to provide a reasoned conclusion on the significant effects of the project on the environment and any environmental conditions attached to the decision.

There will be a duty on local planning authorities to secure (through planning consents) monitoring of predicted environmental effects. The monitoring must be proportionate to the nature, size and location of the project and the significance of its environmental effects.

There will be a duty on local planning authorities to secure (through planning consents) implementation / delivery of mitigation measures.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.