Environmental Impact Assessment Practice Update and the New Directive Gareth Wilson, Partner Barton Willmore LLP
What is EIA? US: the formal process used to predict the environmental consequences (positive or negative) of a project prior to the decision to move forward with the proposed action World Bank: the assessment of projects proposed to help ensure they are environmentally sound and sustainable, and thus to improve decision-making EU: an assessment of the effects of public and private projects on the environment in order to attain one of the Community's objectives in the sphere of the protection of the environment and quality of life UK: a means of drawing together, in a systematic way, an assessment of a project's likely significant environmental effects.
Issues for EIA Practice Screening too many applications Nervous applicants and decision-makers Lack of expertise = kitchen sink Precautionary approach Too much information Fear of Judicial review Time and cost incurred Impact on decision-making and realising critical development
Government 2012 Autumn Statement To reduce 'unnecessary bureaucracy' and make planning system 'faster and more efficient' Proposal to raise screening threshold for dwelling house and industrial estate development from 0.5ha to 5ha Government predicted cut no. of screenings from 1,600 to 300 per year (80%)
2011 EIA Regulations As Amended Basic architecture of EIA system remains intact For industrial development the threshold is increased from 0.5 ha to 5 ha For urban development projects threshold increased from 0.5 ha where: it includes more than 1 ha of development which is not dwelling house development; or it includes more than 150 dwelling houses; or the area of the development exceeds 5 ha No change to development in sensitive areas where thresholds do not apply (NP, AONB, SAC, SSSI etc) SoS can issue a screening direction for any project including in response to a third party
Have the amendments worked? Concern over cumulative effects Precautionary approach still applied lack of confidence? SoS EIA Directions increased Early days but at BW more screenings! If Screening is done properly should be little difference
Planning Practice Guidance: Recent Revisions Single and accessible document Scoping, statutory and non-statutory consultation recommended Emphasis on main/significant effects very brief treatment of others Outline of the main alternatives studied and main reasons for choice NTS in plain English
EIA Directives EIA Directive of 1985 amended three times 1997, 2003, 2009 EIA Directive 2011 Consolidated EIA Directive 2014 (2014/52/EU) New Directive 12th March 2014
EU Directives - Transposition To bring different national laws into line with each other National authorities have to adapt laws to achieve goals of Directive Directive specifies timescales for transposition Member States are free to decide how to adapt laws but must be in a 'sufficiently precise and clear manner'
EIA Directive - What happens next? 16th May 2017 Deadline for Member States to transpose to domestic legislation No news from Government on progress likely to happen end 2016/early 2017 Following Regulations will be replaced: Town & Country Planning (EIA) Regulations 2011 Infrastructure Planning (EIA) Regulations 2009 Other EIA Regulations Marine, Agriculture, Forestry, Pipeline, Highways etc Projects to be assessed under the existing Directive where scoped before transposition
EIA Directive - Summary of Changes Environmental Statement becomes EIA Report Assessment to include demolition (already happening?) Greater detail to support Screening requests EIA to be based on the Scoping Report Joint procedures that discharge obligations under EIA, Habitats and Birds Directive simultaneously Updated requirements on consultation Requirement to assess Human Health, Climate Change, disaster resilience Assessment of 'reasonable alternatives Improve quality
New Definition of EIA The whole process, which includes: Preparing an EIA report Consulting on it Examining the report and consultation responses Issuing a decision Ensuring that mitigation measures etc are implemented
Changes to Screening Greater level of environmental information waste or the use of natural resources climate change and its resilience to climate change cultural heritage and landscape Mitigation to avoid or reduce likely significant effects A mini EIA and later screening submission? Cumulative impact of a project and other existing or approved projects should be considered as part of the screening process A requirement for the main reasons behind the screening decision or screening opinion to be published at the same time A new time frame for the screening process (within 90 days)
Monitoring Required for mitigation of likely significant effects: to identify unforeseen significant adverse effects, in order to be able to undertake appropriate remedial action Success to be measured Already happening ecology, landscape, travel plans etc? What happens if unforeseen effects identified? How will remedial action be secured/enforced?
Human Health Current practice increasingly applying health impact assessment Significance criteria needed i.e. noise has various thresholds Dedicated chapter or embedded across wider ES? Access to healthcare services Wellbeing such as access to employment, housing provision etc. Air quality Noise environment Access to nature and areas for play and recreation Access to sports facilities, opportunities to walk and cycle Perceived adverse impacts on health?
Climate Change Oxford Dictionary definition: A change in global or regional climate patterns, in particular a change apparent from the mid to late 20th century onwards and attributed largely to the increased levels of atmospheric carbon dioxide produced by the use of fossil fuels. When would a development have a significant effect on climate change? Resilience to effects of climate change Where would you draw the line with cumulative effects? Life cycle and embodied carbon? More flexibility in EIA process required?
Reasonable Alternatives Current practice: an outline of the main alternatives studied by the applicant" New requirement: a description of reasonable alternatives studied by the developer What is reasonable? Likely evolution of the baseline without project Consideration of project need, site location, design, technology, etc
Other Environmental Assessments Requirement for coordinated and / or joint procedures fulfilling the requirements of other Directives: Habitats Directive Birds Directive To be decided by the same authority at the same time Anticipate closer alignment of processes through co-ordinated assessments
Quality Control More consistency Improve completeness and quality of the environmental reports Applicants required to employ competent experts Relevant authority required to employ sufficient expertise
Conclusion Significant changes ahead Clear guidance from Government required Period of bedding = uncertainty Screening / Scoping stages requires much greater emphasis Experts at the LPA are key but needs funding!