16 December 2016
The Government has commenced consultation on proposed revisions to the EIA regulations for England; this follows separate consultation in Scotland and Wales. PBA has set out how the proposed regulations are likely to operate, as described in the Government’s consultation document published 14 December 2016.
The proposed regulations will come into force in May 2017 and cover major developments for which consent is being sought, primarily under the Town and Country Planning Act and the Planning Act.
The proposed regulations will impose new requirements for developers and authorities, while several of the amendments seem to add complexity or new requirements that may well make EIA even more prone to challenge. We will be responding to the consultation in the coming weeks but at this stage we consider that some of the key implications of the proposed regulations include:
- Defining mitigation at screening: screening opinions will need to state the mitigation measures that have been allowed for to deliver a development in which environmental effects are not significant. While this helps to formalise the process of determining reasonable mitigation measures and the need for EIA, it gives rise the risk of challenge should mitigation evolve or change during a project or as part of assessment.
- Integration with Habitats Regulations: the proposed regulations will allow integration with Appropriate Assessment required under the Habitats and Wild Birds Directives. Whilst the avoidance of duplication is welcomed, this could make the process more complicated given that the regimes have differing requirements and are undertaken by different parties.
- Competent experts: Environmental Statements will need to be prepared and reviewed by “competent experts”. Who or what constitutes a competent expert is not defined and will no doubt be tested and challenged, while extending the requirement to the review of an Environmental Statement is an additional burden for LPAs and perhaps a further area of challenge if an LPA has been unable to draw upon suitable expertise.
- Up-to date: the regulations will reinforce that environmental information needs to be up-to-date at the time of a final decision. This is likely to require updated assessments and confirmatory information when there has been a lengthy determination period or a material gap between determining an application and, for example, finalising legal agreements.
- Monitoring: the regulations will include a new requirement for the monitoring of likely significant effects. Such a requirement will allow stakeholders to better understand the environmental outcomes of projects, but will add cost and complexity for developers. In particular, the monitoring of operational effects of multi-phase, multi-developer strategic schemes will no doubt present a challenge. It will also be interesting to see the remedies which are reached if monitoring demonstrates that a prediction made in the ES is incorrect!
The proposed regulations will include transitional arrangements, such that projects which have commenced under the 2011 Regulations will continue under that regime.
To discuss how your projects may be affected by the proposed regulations or to participate in our consultation response please get in touch with:
PBA is a founder member of the Institute of Environmental Management and Assessment’s EIA Quality Mark for excellence in EIA.