EIA legislative changes

Transcription

1 EIA legislative changes The revised Directive and the new Regulations (and new thresholds) Toby Fisher

2 Summary The revised EIA Directive 12 March 2014 Needs to be implemented by 2017 The new EIA Regulations 12 March 2015 In force from 6 April 2012

3 The New Regulations: what do they mean for developers?

4 Background Structure of the EIA Regulations All development falling within the descriptions in Schedule 1 to the Regulations must have an EIA All development falling within the descriptions in Schedule 2 to the Regulations must be screened to assess whether the development is likely to have significant environmental effects. The screening process is therefore aimed at determining whether or not a project requires EIA. The lower the thresholds, the more robust the safeguards; but the higher the administrative burden.

5 Proposals for change Proposal to raise screening thresholds first set out in 2012 Autumn statement as part of suite of proposals to reduce unnecessary bureaucracy from the planning system and to make it faster and more efficient Technical consultation on proposals to raise screening thresholds carried out between August and September 2014

6 Key amongst the changes was the proposal to raise the screening threshold for residential dwellinghouse development from 0.5 ha to 5 ha. The government predicted that this change to dwellinghouse development would cut the number of screenings of English residential development proposals from around 1,600 a year to about 300, a fall of around 80 per cent.

7 The Town and Country Planning (Environmental Impact Assessment) (Amendment) Regulations 2015 Amendment to thresholds for Schedule 2 development to the 2011 Regulations. In particular, amendments to paragraph 10 (a) (c) in the Table

8 The thresholds compared Description New threshold Old threshold (a) Industrial estate development projects The area of the development exceeds 5 hectares. The area of the development exceeds 0.5 hectare. (b) Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas; (i) The development includes more than 1 hectare of urban development which is not dwellinghouse development; or (ii) the development includes more than 150 dwellings; or (iii) the overall area of the development exceeds 5 hectares. The area of the development exceeds 0.5 hectare. (c) Construction of intermodal transhipment facilities and of intermodal terminals (unless included in Schedule 1); The area of the development exceeds 0.5 hectare. The area of the development exceeds 0.5 hectare.

9 Exceptions No change to development in sensitive areas where thresholds do not apply for example in: National Parks, Areas of Outstanding Natural Beauty, Special Areas of Conservation, etc. Further, the Secretary of State can issue a screening direction for any project irrespective of whether it falls above or below the screening threshold. This includes in response to a third party request.

10 Consequences for developers Overall a win for developers. However, 150 dwelling threshold was introduced to address potential for high-rise developments under 5ha to have significant environmental effects. Significantly, it was introduced AFTER the figures published by government predicting an 80% decrease in residential screening. 150 dwelling threshold may in some cases result in a lower threshold than previously and more screening than previously.

11 The New Directive

12 Introduction Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment Must be transposed by 16 May 2017 Results in some changes to the architecture of the EIA system, but has been significantly watered down from earlier proposals, in the face of strong opposition (including from the UK)

13 Objective Two stated objectives: Ensuring consistency of application across Member States Reducing the burden on developers and decision makers by focusing EIA only on the most significant impacts and by speeding up the consenting of projects Arguably, the revisions achieve the first; fail to achieve the second

14 Competent Experts The revised Directive introduces a need for EIAs to be produced by competent experts The term is not defined and Member States will have to come up with their own definitions.

15 Screening Introduction of more specific information that developers will have to provide at the screening stage (Annex IIA; Art.4(3)) The required information includes: impacts from waste or use of natural resources; impacts on, and resilience to, climate change; impacts on cultural heritage and landscape; risks from major accidents or disasters. The Annex IIA list potentially establishes a need to submit a mini-eia at the screening stage.

16 Scoping Proposal for mandatory scoping was not implemented However, where a scoping opinion is requested from the decision maker the EIA Report will need to be based on the response (Art.5(1)) At what stage should a developer seek a scoping opinion? How much information to be given to support the request? Insufficient information could result in a scoping opinion that through risk aversion goes well beyond that which is reasonably required.

17 Content of the EIA Report (the ES) The revised Directive includes clearer requirements for content on a number of areas, including (Annex IV): impacts on biodiversity, climate change, and landscape; vulnerability to accidents and disasters. These matters are generally addressed fairly comprehensively in existing ESs, so are unlikely to require a substantial change in practice in the UK (but may well do so elsewhere)

18 Content of the ES (cont) Consideration of alternatives This is perhaps the most significant amendment in terms of content requirements Proposal to incorporate mandatory assessment of reasonable alternatives (i.e. the SEA requirement) was not pursued, but the revised directive requires (Art.5(1)): a description of the reasonable alternatives studied by the developer Includes alternatives including re: project design, technology, location, size and scale (Annex IV, para.2)

19 Content of the ES (cont) reasonable alternatives studied by the developer or the developer should study all reasonable alternatives? The text seems fairly clear, but will the CJEU agree? See C-567/10 Inter-Environnement Bruxelles ASBL v Region de Bruxelles-Capitale [2012] Env. L.R. 30 for a purposive approach to SEA. CJEU interpreted required as not meaning required but regulated, and ignored the travaux. See the SC comments in R (Buckinghamshire) v SST [2014] UKSC 3

20 Procedural amendments Increased potential for third party challenges? In the event of negative screening decision, the decision will have to state which design and mitigation measures must be included as part of the scheme for the scheme not to be considered as being EIA development (Art.4(5)(b). In the event of consent for EIA development, the Directive now includes requirements for monitoring of implementation of mitigation measures (Art.8a(4)). Accordingly, enforcement of conditions no longer simply a matter for the LPA.

21 Procedure (cont) Decision maker must be satisfied that the ES is up to date before determining the application (Art.8a) What will this mean in the context of drawn out appeals; reserved matters applications? Authorities must choose to either combine the EIA process with "appropriate assessments" under the European Habitats Directives or simply co-ordinate the assessments (Art.2(a)(3)). What does this mean in practice? Commission to provide further guidance.

22 Conclusions Basic architecture of the EIA system remains intact. New Regulations provide some substantive amendments to screening thresholds, particularly re: residential development. New Directive raises possibility of substantial changes to come. Proof will be in the transposition.