The Government is concerned that the delivery, in particular, of new housing and jobs in local communities is being unnecessarily hampered (in time, cost and complexity) by the requirement or perceived requirement to submit applications to the environmental impact regime (EIA).  The focus of the consultation is therefore the impact of the EIA regime on the consenting of housing, urban developments and industrial estates. 

Over-application of the EIA regime is seen as being driven by the fear of legal challenges on the parts of both Local Planning Authorities and developers.  The proposal is to significantly raise the EIA threshold for such projects so that those below the threshold will not even fall to be considered on a case by case basis when applications are submitted.

The following thresholds are being considered:

  • Industrial estates - screening threshold to be raised from 0.5 hectares to 5 hectares.
  • Urban development projects - site area greater than 5 hectares; greater than 10,000 sqm of new commercial floor-space; development would have a significant urbanising effect in a previously non-urbanised area
  • Housing - screening threshold to be raised to 5 hectares.

Comment

It is often the case that, even where a project has been screened out of EIA, the Local Planning Authority still requires such a volume of supporting material for the application that, in terms of time and cost, it becomes a mere technicality as to whether an application is or is not subject to EIA.  Any de-regulation will be toothless unless LPAs respond by taking a correspondingly more proportionate approach to applications.

Although a screening decision is liable to judicial review at the time that it is taken (and that litigation window will thereafter expire), a subsequent consent will also be potentially subject to judicial review, including on the ground that it was taken without having taken into account environmental information as required by the EIA regime.  Developers may be reluctant to risk moving ahead without providing the environmental information (whether or not the project is deemed to be subject to EIA) where the threshold is determined, for example, by a concept such as having "a significant urbanising effect" in circumstances where the survey lead times for environmental statements can often be measured in years.

Overall, these proposals should be welcomed, but developers need certainty, and therefore precision in the definition of the thresholds, and LPAs need to have courage not to continue to require environmental statements in all but name.