Department for Communities and Local Government consultation on legal changes to implement the new EIA Directive
The Department for Communities and Local Government in England is now consulting on its implementation of the new EIA Directive (2014/52/EU). The new Directive must be implemented by 16 May 2017. The DCLG consultation closes on 1 February 2017. The Scottish and Welsh Governments opened their equivalent consultations earlier on 9 and 22 August 2016 respectively.
We have previously provided a briefing on the new EIA Directive and the significant changes that developers and other interested parties will see: please see our “New EIA Directive: Take action before 16 May 2017” briefing from our Autumn 2016 bulletin (http://www.freeths.co.uk/publications/new-eia-directive-take-action).
Having now reviewed the DCLG consultation, we can confirm that the key points we made in our earlier briefing have been picked up by DCLG in its consultation. The DCLG consultation proposes to effect the changes required by the new Directive by making amendments to the existing Town and Country Planning (Environmental Impact Assessment) Regulations 2011 and reissuing them as the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.
- Screening (proposed reg 6): The new, more extensive screening process is being implemented. The developer’s request for a screening opinion will be accompanied by a much larger document covering a more robust set of requirements including (if the developer wishes) the proposed mitigation measures so as to demonstrate that the project will not have any likely significant effects. It is therefore likely that developers will look to produce a “mini Environmental Statement” to meet this requirement.
- Screening period: The screening period is to be between 3 weeks and 90 days (if beyond 3 weeks the period (up to 90 days) must be agreed as between the LPA and the developer). Currently it is set at 30 days maximum. It is likely that in most cases the LPA will need a period longer than 30 days to respond to the screening request given the more extensive information now required.
- Schedule 2 thresholds / criteria (ie the first step to determining if a Schedule 2 project is EIA development): No changes are proposed to be made to the Schedule 2 thresholds or criteria.
- “Environmental Statement”: The term “Environmental Statement” (“ES”) is to be retained, even though the new Directive uses a new term “EIA Report”.
- Contents of ES (proposed reg 4, reg 18 and revised Schedule 4): A wider and more comprehensive list of subjects are to be covered including a new focus upon any expected significant effects arising from the vulnerability of the proposed development to major accidents or disasters that are relevant to that development.
- Competent person to prepare ES (proposed reg 18): there is a new requirement that persons with sufficient expertise to ensure the completeness and quality of the ES must prepare the ES; and that the ES must contain a statement explaining how this requirement has been met.
- ES consultation period (proposed reg 19(5)): at present there is a minimum consultation period of 21 days, but this will be increased to a minimum of 30 days.
- Monitoring measures (proposed reg 26): where EIA applies, there is a new duty on the LPA to consider whether it is appropriate to impose monitoring measures on the planning permission (there are specific matters which the LPA must consider within this requirement, contained in proposed reg 26(3)).
- LPA’s record of its planning decision (proposed reg 29): there are additional requirements for the LPA when granting consent to EIA development including the need to set out (i) any planning conditions relating to any likely significant effects; (ii) a description of any mitigation measures; (iii) any monitoring measures. In addition the LPA must ensure (proposed reg 26) that, where EIA applies, the planning decision is made based on an up to date assessment of the environmental impacts.
- New “coordination” requirement (expressed as a duty on the LPA) between the EIA process and any Habitats Regulations Assessment required (proposed reg 27): the consultation paper from DCLG states its view that this is what happens already in practice in any event.
- Transitional arrangements (proposed reg 77): these are as described in our earlier EIA briefing (see above).
There is a separate joint consultation being run by the Department of Environment, Food and Rural Affairs, the Welsh and Scottish Governments and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland on equivalent changes to the Forestry, Agriculture and Water Resources, Land Drainage and Marine Works Environmental Impact Assessment Regulations – see: www.consult.defra.gov.uk/housing-and-planning/environmental-impact-assessment-eia-changes/consultation/intro/.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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