The 2017 EIA Regulations a legal perspective

Transcription

1 The 2017 EIA Regulations a legal perspective Tim Smith Partner, Berwin Leighton Paisner LLP 16 th May 2017

2 Agenda Transitional provisions Guidance and review What are the implications of what is new? Co-ordination with Habitats Regs Assessments ES scope and content Competence and objectivity requirements Monitoring measures Page 2 Berwin Leighton Paisner

3 EIA challenges the spectrum of decisions (1) High watermark for compliance: The purpose of the Directive was to ensure that planning decisions which may affect the environment are made on the basis of full information A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues Berkeley v- SoS and Fulham Football Club [2000] Page 3 Berwin Leighton Paisner

4 EIA challenges the spectrum of decisions (2) Low watermark for compliance: The Regulations should be interpreted as a whole and in a common-sense way... In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the full information about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations but they are likely to be few and far between. It would be of no advantage to anyone if environmental statements were drafted on a purely defensive basis, mentioning every possible scrap of environmental information just in case someone might consider is significant at a later stage. Such documents would be a hindrance, not an aid to sound decision-making by the local planning authority R (ota Blewett) v- Derbyshire County Council [2003] Page 4 Berwin Leighton Paisner

5 EIA current approach of the Courts Principles of EIA Breach of procedures less likely to be condoned Adequacy of the ES is a judgement for decision-maker Involves value judgements based on: Likelihood Significance ES not to be read as if were a statute or legal document Only strike down ES if decision as to adequacy was irrational i.e. a decision so unreasonable that no reasonable decision-maker could have arrived at it Page 5 Berwin Leighton Paisner

6 Transitional provisions reg 76 New Regulations in force today! For the most part, affect England only New Welsh Regs also in force today Separate Regulations for NSIPs If before 16 th May 2017: ES submitted or a scoping opinion requested, 2011 Regs apply to the application as a whole Screening opinion/direction requested by applicant, or opinion adopted by LPA/direction given by SoS, Parts 1 and 2 of the 2011 Regs apply to the screening Page 6 Berwin Leighton Paisner

7 Guidance and review Guidance on EIAs now found in the PPG, not a Circular PPG is being updated (not done yet) Meanwhile some clues in the December 2016 consultation Review obligations on the SoS (reg 71): Must review and report on the Regs regularly First report due by 16 th May 2022 Subsequent reports at no more than 5 year intervals (Plus any revision obligations from updates to the Directive if relevant post-brexit) Page 7 Berwin Leighton Paisner

8 Co-ordination with Habitats Regs Assessments Appropriate Assessments under Habitats Regulations 2010 Tests and thresholds different EIA: unmitigated impacts are merely a material consideration Hab Regs: unmitigated impacts are to be avoided Unless reasonable scientific certainty that impacts not affect integrity of the protected habitat, permission should be refused unless justified by IROPI Co-ordination, not a combined assessment: Where there is, in addition to the requirement for an EIA to be carried out, also a requirement to carry out a Habitats Regulation Assessment, the relevant planning authority or the Secretary of State must, where appropriate, ensure that the [two assessments] are co-ordinated (Reg 27) Page 8 Berwin Leighton Paisner

9 ES scope and content (1) Compliance with any scoping is now mandatory: An ES must where a scoping opinion or direction has been issued be based on the most recent [one] issued (so far as the development remains materially the same ) reg 18(4)(a) But still not mandatory to scope New areas to cover in the ES: Risks to human health, cultural heritage or the environment Effects arising from the vulnerability of the proposed development to major accidents or disasters Page 9 Berwin Leighton Paisner

10 ES scope and content (2) LPA can request further information (reg 25) if directly relevant to reaching a reasoned conclusion on likely significant effects Developer can still volunteer any other information Cumulative effects (Sch 4): 2011 Regs: assess likely significant effects which should cover cumulative effects 2017 Regs: assess the cumulation of effects with other existing and/or approved projects (para 5(e)) Alternatives: ES must include A description of the reasonable alternatives studied by the developer, which are relevant to the proposed project and its specific characteristics (reg 18(3)(d)) Still no requirement to consider alternatives Page 10 Berwin Leighton Paisner

11 Competence and objectivity (1) Competence (reg 18(5)): Developer must ensure prepared by competent experts (cf. Wales) ES must include a statement of expertise/qualifications of authors Applies to LPA and SoS too: The relevant planning authority or the Secretary of State must ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement (reg 4(5)) To preserve objectivity, LPA and SoS must: Perform duties in an objective manner Not find themselves in a conflict of interest Where determining their own proposal make appropriate administrative arrangements to ensure that there is a functional separation Page 11 Berwin Leighton Paisner

12 Competence and objectivity (2) So what is new? Limited guidance of any value: Consultation not define competence because it is considered to be sufficiently clear because it is likely to depend on the individual circumstances of each case A free-standing ground of challenge? In reality I doubt it May reinforce a challenge based on adequacy of ES Proving a lack of competence if the ES is adequate is different Unlikely to stand alone as a ground of challenge: This ES is fine but the author/coordinator was not competent Page 12 Berwin Leighton Paisner

13 Monitoring measures (1) Decision to grant must be accompanied by information on any monitoring measures considered appropriate (reg 29(2)(b)(dd)) Monitoring measures means monitoring of adverse effects required by: Planning condition, or Planning obligation Page 13 Berwin Leighton Paisner

14 Monitoring measures (2) Note that: Not mandatory to have monitoring IEMA Guidelines (2004): In terms of obligations on the developer, there is no requirement for monitoring or follow up activities to be undertaken in the EIA Regulations. However, monitoring of environmental effects may be required by conditions on the project Legal implications: Emphasis means more likely monitoring be required Monitoring suggests uncertainty? Monitoring cannot be substitute for gaps in the environmental information at date of grant Page 14 Berwin Leighton Paisner

15 This document provides a general summary only and is not intended to be comprehensive. Specific legal advice should always be sought in relation to the particular facts of a given situation.