Practical Implications of Environmental Impact Assessment Directive Amendments 1

Transcription

1 Practical Implications of Environmental Impact Assessment Directive Amendments 1 1. This paper seeks to give an overview of the 2014 EIA Directive that amends the 2011 Directive. The changes will have to be transposed into UK law by May 2017, and the Government has already consulted on Draft Regulations. 2. The most significant changes (in summary) are: The addition of a definition of the environmental impact assessment process - Article 1(2)g; Changes to the circumstances in which a project may be exempt from the requirements of the Directive Articles 1(3); Introduction of Joint and/or Coordinated procedures for projects which are subject to the Habitats or Wild Birds Directives as well as the EIA Directive Article 2(3); Changes to the list of environmental factors to be considered as part of the environmental impact assessment process Article 3; Clarification of the options for screening and amendments to the information which is required and the criteria to be applied when screening projects to determine whether the Directive applies Article 4, Annex IIA and Annex III; Amendments to the information to be included in the environmental statement Article 5 and Annex IV; 1 No 5 CHAMBERS ICC CONFERENCE 3 APRIL

2 A requirement for environmental statements to be based on a scoping opinion, where one is issued Article 5(2); The use of competent experts - Article 5(3); A requirement to inform the public of projects electronically - Article 6(2) and 6(5); A new article elaborating on information to be given in decision notices and the decision making procedures Article 8a; Monitoring significant adverse effects - Article 8a(4); A new Article requiring the avoidance of conflicts of interest Article 9a; The introduction of penalties for infringements of national provisions Article 10a. 3. The paper is split into the following four sections: 1) Introduction 2) Brief overview of EIA Directive regime 3) Current Position 4) Main changes and effect on day-to-day practice Introduction 4. The first EIA Directive came into force in 1985 as Council Directive 85/337/EEC (the 1985 Directive ) and was amended in 1997, 2003 and The 1985 Directive and its three amendments were codified by Directive 2011/92/EU. The 2011 Environmental Impact Assessment ( EIA ) Directive forms part of European law and has now been amended by Directive 2014/52/EU ( the 2014 Amendments ), which must be incorporated into UK law by May

3 5. The 2014 Amendments entered into force on 15 May 2014 allegedly to simplify the rules for assessing the potential effects of projects on the environment in line with the drive for smarter regulation. It is intended that the 2014 Amendments will reduce the administrative burden on those involved in Environmental Assessment, and also reflect the changes that have taken place since the original Directive came into force in 1985; for example increasing access to electronic communications and data sharing platforms. The Regulations are intended to improve the level of environmental protection with a view to making business decisions on public and private investments more sound, and more predictable and sustainable in the longer term. Overview 6. Environmental Impact Assessment is a process that can be summarised as follows: (i) (ii) (iii) (iv) Some project types are always considered likely to have significant effects on the environment and must be subject to environmental impact assessment in all cases. These project types are listed in Annex I of the Directive, e.g. nuclear power stations, oil refineries and large quarries. Other project types are only considered likely to have significant effects in some cases depending on their nature, size and location. These project types are listed in Annex II of the Directive and include urban development and smaller energy and infrastructure projects. Projects listed in Annex II must be subject to environmental impact assessment where it is determined that they are likely to have significant effects on the environment. The process for determining whether a project listed in 3

4 Annex II is likely to have significant effects on the environment is usually referred to as screening. Member States can decide whether a project listed in Annex II should be subject to environmental impact assessment through a case-by-case examination and/or by setting thresholds or criteria. Annexes I and II are replicated in Schedule 1 and 2 of the current Regulations respectively. 7. The developer may request the competent authority to say what should be covered by the EIA information to be provided by the developer (scoping stage); the developer must provide information on the environmental impact (EIA report Annex IV also known as an Environmental Statement); the environmental authorities and the public (and affected Member States) must be informed and consulted; the competent authority decides, taking into consideration the results of consultations. The public is informed of the decision afterwards and can challenge the decision before the courts. 8. Fundamentally the scheme of the current EIA process doesn't change as a result of the 2014 amendments, but there is added detail. Screening is EIA required? Scoping determining the information needed for assessment Developer prepares an environmental statement. Consultation on application and Environmental Statement 4

5 Decision maker examines the information presented in the environmental statement and any other information including that obtained through the consultation and takes it into account in deciding whether to grant development consent Post decision procedures Current position 9. The current Regulations in force are the Town and Country Planning (Environmental Impact Assessment) Regulations 2011/1824, which transpose the 2011, 21 page Directive, into 113 pages. The proposed 2017 Regulations on which the Government has recently consulted occupy just 67 pages. The Technical Consultation opened in December for seven weeks. Responses are presently being considered. 10. In case readers are wondering whether we ought to be troubled with the 2014 Amendments given the impending departure from the European Union, the short answer to the question is yes. First, EIA is not a new concept and has ensured better environmental standards and protections for decades. It is unlikely that leaving the EU will prompt the UK to simply abandon what is now a well-utilised and embedded system of environmental protection. Moreover, Member States have to transpose the amendments to the Directive into domestic legislation by 16 May 2017, i.e. in two months time. The UK will still be a member of the EU on that date, and there are significant 5

6 financial penalties for late transposition. 11. The impact of Brexit is explained in the very first paragraph of the Government s Consultation Paper on the proposed approach to implementing European Directive 2014/52/EU ( the Consultation Paper ): 1. On 23 June, the EU referendum took place and the people of the United Kingdom voted to leave the European Union. Until exit negotiations are concluded, the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will continue to negotiate, implement and apply EU legislation. The outcome of these negotiations will determine what arrangements apply in relation to EU legislation in future once the UK has left the EU. 12. Accordingly, the 2014 amendments must be transposed, and the Government proposes to do so through The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 ( the 2017 Regulations ); they will apply only in England. This paper does not consider the position elsewhere in the UK. 13. The final form of the Regulations will be known shortly, but the Consultation Paper reveals the intention that the Regulations should be streamlined and do no more than is necessary to transpose EU Law: 16.The Government s Better Regulation agenda includes the requirements that when transposing EU law the Government will ensure that the UK does not go beyond the minimum requirements of the measure which is being transposed and will use copy out for transposition where it is available, except where doing so would adversely affect UK interests. 6

7 We have sought to follow these principles in transposing the amendments made by Directive 2014/52/EU, and to minimise additional regulatory burden whilst protecting the environment. (emphasis added) 14. In particular, it is considered that the present system is well understood, by those engaged in the process and thus. proposals for consultation therefore represent what we consider to be the minimum changes necessary to the existing regulations in order to bring them into line with the amended Directive. This will also minimise familiarisation costs and business uncertainty. The main changes and day-to-day practice Article 1 - Exclusions Exclusion for projects having defence as their sole purpose, which is a restriction on the existing exemption that applies to projects serving national defence purposes, whether that is the sole purpose or not. Exclusion for projects having the response to civil emergencies as their sole purpose. What constitutes a civil emergency is not defined by the Directive nor the Draft Regulations but presumably could apply to major weather events as well maritime incidents for example - the responses to which could conceivably require development that would normally require environmental impact assessment. The 2014 Directive introduces a definition of the environmental impact assessment process. Article 1(2)(g). 7

8 Article 2 Joint / Coordinated procedures Introduction of Joint and/or Coordinated procedures for projects which are subject to assessment under other Directives as well as the EIA Directive. Where a project is simultaneously subject to an assessment under the Environmental Impact Assessment Directive and also under the Habitats and/or Wild Birds Directives, the 2014 Directive requires that, where appropriate, either a coordinated procedure or a joint procedure should be used. The coordinated procedure requires designating an authority, or authorities, to coordinate separate assessments. The joint procedure, on the other hand, requires Member States to endeavour to provide for a single assessment of a project s impacts on the environment. The Government considers that the coordinated procedure provides the greatest flexibility for developers around the phasing and timing of environmental impact assessment and appropriate assessment under the Habitats Directive. No other Directive is included for coordination within the draft Regulations. This is thought to reflect existing practice in England. The consultation paper explains that the joint procedure would require the information to inform both assessments to be dealt with in a single assessment and views are sought on whether it be helpful to make provision to deal expressly with the situation where more than one authority is involved in granting permission for a proposal. At present, the proposed Regulation is: 27. (1) Where in relation to EIA development there is, in 8

9 addition to the requirement for an EIA to be carried out in accordance with these Regulations, also a requirement to carry out a Habitats Regulation Assessment, the relevant planning authority or the Secretary of State, as the case may be must where appropriate ensure that the Habitats Regulation Assessment and the EIA are co-ordinated. So for example, consent for development is presently issued by the decision taker only after consideration of EIA and the Habitats Regulations (and consideration of the EIA and Habitats Regulations Assessment by various statutory advisers/environmental authorities and consultation bodies) - this coordinated assessment approach will continue and is transposed in the draft Regulations. It is difficult to see therefore what change will be brought about by the requirement for co-ordination in the majority of cases. It may not affect EIA or planning practice to any great extent, as EIA is usually already closely co-ordinated with Habitat Regulations Assessment when both are required, and there are many instances where one, but not the other is required. However, the proposed Regulations in maintaining the status quo would seem to fall short of what the Directive is seeking to achieve as explained at recital 37 of the 2014 Amendments: In order to improve the effectiveness of the assessments, reduce administrative complexity and increase economic efficiency, where the obligation to carry out assessments related to environmental issues arises simultaneously from this Directive and Directive 92/43/EEC and/or Directive 2009/147/EC, Member States should ensure that coordinated and/or joint procedures fulfilling the requirements of these Directives are provided, where appropriate and taking into account their specific organisational characteristics. Where the 9

10 obligation to carry out assessments related to environmental issues arises simultaneously from this Directive and from other Union legislation, such as Directive 2000/60/EC of the European Parliament and of the Council, Directive 2001/42/EC, Directive 2008/98/EC of the European Parliament and of the Council, Directive 2010/75/EU of the European Parliament and of the Council and Directive 2012/18/EU, Member States should be able to provide for coordinated and/or joint procedures fulfilling the requirements of the relevant Union legislation. Where coordinated or joint procedures are set up, Member States should designate an authority responsible for performing the corresponding duties. Taking into account institutional structured Member States should be able to, where they deem it necessary, designate more than one authority In particular, it is difficult to see how the proposed arrangement will lead to any improvement in the effectiveness of the assessments, reduce administrative complexity and increase economic efficiency, but very little information is given within the Directive as to what is intended by the procedure or practical example of when it might be useful and effective. The Commission is to provide further guidance in due course and guidance issued in the UK following the adoption of new Regulations may be able to make some practical difference. Article 4 Screening The 2014 Directive has introduced a new detailed list of the information that the applicant must provide to the competent authority to help it screen an application for Annex II development. The requirements are contained within the new Annex II.A and include: 10

11 (i) (ii) (iii) a description of the project, including where relevant, demolition works; a description of the aspects of the environment likely to be significantly affected by the project; and a description of the likely significant effects on the environment resulting from a. expected residues, emissions and production of waste; b. use of natural resources, in particular, soil, land, water and biodiversity. Screening will therefore become significantly more comprehensive and potentially establish a need to submit a mini-eia at an early stage, albeit the focus is on likely significant effect and not simply potential significant effects. In practice, that should cut down on the information to be provided to the LPA. Article 4 also makes clear that the developer may provide a description of any features of the project and/or measure envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment. The Consultation Paper explains the practical effect of that addition: While this reflects existing domestic case law (see, for example, R(on the application of Champion v North Norfolk District Council) [2015] UKSC 52 and practice, it is anticipated that more developers will seek to demonstrate that their project will not be likely to have significant environmental effects through earlier consideration of mitigation or avoidance measures. While the extent to which mitigation measures can be used to screen out development at the screening stage will 11

12 depend on the specific circumstances in each case, this should help reduce the number of projects subject to environmental impact assessment. Article 4(5) now requires that the authority must state the main reasons rather than full reasons (see 2011 Regs) for its determination, including, if the determination is that an assessment is not required, any features of the proposed development and measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment. As with any requirement to give reasons, the provision is likely to provide fertile ground for challenge, particularly where the potential for mitigation has removed the need for an EIA, and bearing in mind that screening is not a stage that requires consultation of members of the public. Moreover, while the requirement is now to give main rather than full reasons, it would nonetheless be prudent for decision-takers to either keep a record of, or express the full reason for the decision within the determination given the potential for challenge. Article 4(6) introduces the requirement that the competent authority must make its screening determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required. This period can be extended in exceptional circumstances. The Government s proposals for the Regulation are that where a local planning authority is adopting a screening opinion, it must do so within 3 weeks although a longer period (up to 90 days but no more) can be agreed with the applicant. Article 3 and Article 5 Contents of the EIA 12

13 There are some minor changes to Article 3 and additions such as human health, land and specific reference to protected species and habitats, presumably because of the desire to coordinate assessments. The effects to be assessed are those that are significant which provides clarification over the 2011 Directive that referred to the direct and indirect effects of a project on the following factors. Further, Article 3(2) of the Directive also introduces a new requirement to consider the expected effects deriving from the vulnerability of the project to risks of major accidents and/or disasters that are relevant to the project concerned for example including those caused by climate change. The amended Directive brings the minimum information requirements into Article 5(1). There have been some other amendments to Annex IV. However, DCLG s preliminary view is that it is likely in practice that all of the issues listed in the amended Annex should already be included in an environmental statement, where it is considered to be relevant to an assessment of the likely significant effects of development and thus, there will be little change arising from the 2014 Amendments. Also new to Article 5 as elsewhere in the 2014 Amendments, is the focus on likely significant effects rather than just main effects or significant adverse effect. The amendment is likely to help focus Environmental Statements so that they are shorter and more relevant. Article 5 Alternatives Presently, the 2011 Regulations require that an ES outlines the main alternatives studied by the applicant or appellant and an indication of 13

14 the main reasons for the choice made, taking into account the environmental effects. The PPG explains that an applicant does not actually have to consider alternatives but where alternatives have been considered, the applicant is required to include in their Environmental Statement an outline of the main alternatives considered, and the main reasons for their choice. The Directive broadens the requirement to include: a description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment. (Art 5(1)(d)) According to Annex IV, paragraph 2, alternatives now refer to project design, technology, location, size and scale. The wording no longer refers to main alternatives but now rather reasonable alternatives. So for example, while in some assessments it is common to see a study limited to alternative designs of the same project in the same place, the Directive would seem to go beyond that narrow approach and demand a more comprehensive analysis of alternatives. Arguably the inclusion of the word reasonable could invite disagreement and potential challenge as between applicants, LPAs, and consultees as to whether the developer has done enough; assessments where they embarked on will undoubtedly have to be more thorough in future. However, there is no indication that the requirement is mandatory despite proposals that it should be, and thus developers may still choose to omit an assessment of alternatives, reasonable or otherwise. Given the detail that now has to be included, it is likely that more 14

15 applicants will choose to avoid discussion of alternatives altogether, and so it is difficult to see how this particular amendment leads to better environmental decision taking. Article 5 Scoping It remains voluntary the proposal for mandatory scoping was rejected. The 2014 Directive retains the provision for a developer to seek a scoping opinion if they choose. It now provides that the competent authority must issue an opinion on the scope and level of detail of the information required in the statement, taking into account the information provided by the developer on the specific characteristics of the project and its likely impact on the environment. Importantly it also introduces the requirement that where a scoping opinion has been requested, the environmental statement should be based on that opinion. Applicants should therefore be sure when producing an ES that all those matters referred to in the scoping opinion are covered, albeit in practice that is likely to be the case now. In accordance with the rest of the Directive, the focus should be on likely significant impacts rather than any potential impacts. It is of benefit to applicants, the LPA and consultees to have a focused ES in terms of producing and assessing the information. Article 5 Competent experts and access to sufficient expertise The 2014 Directive includes a new Article 5(3). This requires the 15

16 developer to ensure that the environmental statement is prepared by competent experts, while the competent authority must ensure that it has, or has access as necessary to sufficient expertise to examine the environmental statement. The Government proposes to include a requirement in the regulations that the environmental statement must be prepared by persons who in the opinion of the competent authority, have sufficient expertise to ensure the completeness and quality of the environmental statement. The consultation paper explains that this will be supported by a requirement for the environmental statement to include a statement setting out how the requirement for sufficient expertise has been met. The Draft Regulations do not seek to define competent expert any further, both because it is considered to be a sufficiently clear term, but also because it is likely to depend on the individual circumstance of each case. Views are sought in the Consultation Paper on this approach. Article 6 and electronic communication; The 2014 Directive adds the requirement that the public should be informed about an application and the matters set out in Article 6(2) electronically through at least a central portal or easily accessible points of access. The rationale is to ensure the effective participation of the public concerned. The amendment acknowledges the increased use of the internet and electronic forms of communication as a way in which people participate in the planning system. There are already provisions requiring local planning authorities to publish certain information relating to planning applications on their websites (see regulation 15(7) of the Town and Country Planning (Development Management) Procedure Order 2015 and so in practice, 16

17 it is thought that environmental statements are generally made available on authorities websites. In the case of nationally significant infrastructure projects of course, the Planning Inspectorate already publishes notices and environmental statements on their websites. Practically both applicants and local authorities will have to ensure there is a way of disseminating and displaying the information electronically. That can be challenging where for example, visual assessments are contained in very large files, but dedicated developer website can often be useful as a tool to overcome the potential shortcomings of LPA websites. Article 6 and the Consultation Timeframe Article 6(7) sets a new minimum timeframe for public consultations on the environment statement. This should be no shorter than 30 days. The existing minimum period for consultation is 21 days. Article 8a Monitoring and Article 10a Article 8a(1)(b) requires that in addition to any environmental conditions attached to the decision, competent authorities must also ensure that any mitigation measures and, where appropriate, monitoring measures are identified in the consent. It is for Member States to determine the procedures regarding the monitoring of significant adverse environmental effects. The type of parameters to be monitored and the duration of the monitoring should be proportionate to the nature, location and size of the project and the 17

18 significance of its effects on the environment. Existing monitoring arrangements may be used if appropriate, with a view to avoiding duplication. The Government s view as expressed through the Consultation Paper is that existing mechanisms such as planning conditions and planning obligations provide an appropriate way to monitor mitigation. Similarly, a new Article 10a requires that Member States must lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive. The penalties thus provided for shall be effective, proportionate and dissuasive. However, the Consultation Papers again explains that existing mechanics relating to enforcement are sufficient to meet with the requirements of the Directive. Nonetheless a new Regulation is proposed to place an explicit duty on local planning authorities to have regard, when exercising their enforcement functions (as described in regulation 36 of the draft Town and Country Planning regulations), to the need to secure compliance with the requirements and objectives of the Directive. Article 8 Up-to-date information Article 8a(6) requires that the competent authority s reasoned conclusion on the significant impacts on a proposal is still up-to-date at the time a final decision is taken. That will be important where there is a significant time delay between the submission of an ES and determination for example where planning permission is refused by the LPA and the developer appeals. In practice, most applicants do update baseline environmental information where there is delay in the determination process, but this is certainly a change to be aware of. 18

19 Article 9a Conflicts of Interest The new Article 9a will be important where an organisation is both the developer and the consultation body and/or competent authority. In such instances, there must be an appropriate separation between functions. The competent authority or authorities must perform their duties arising from the Directive in an objective manner and not find themselves in a situation giving rise to a conflict of interest. The Consultation Paper says the following: 64. We do not consider at this stage that this will have any new effects in practice. Bias is already a ground for judicial review. The Town and Country General Planning General Regulations include provision in the case of a local planning authority making an application to itself to avoid conflicts of interest (see regulation 10). In practice, authorities will normally ensure an administrative separation to help ensure that conflicts of interest do not arise. The requirements have been transposed through a new regulation dealing with objectivity and bias see regulation 65 of the Town and Country Planning regulations and regulation 34 of the Infrastructure Planning regulations. The Draft Regulations provide for function separation where the developer / decision taker is the Secretary of State, but probably for practical reasons, does not impose the same burden on LPAs or indeed any other bodies. LPAs and other bodies might consider putting codes of practice in place where the situation arises, albeit the Regulations do not require it. Thea Osmund-Smith No5 Barristers Chambers +44 (0) TheaOS@no5.com 19