On 12 March 2014, the European Parliament voted to adopt substantive amendments to the Environmental Impact Assessment (“EIA”) Directive 2011/92/EU. These amendments made by EIA Directive 2014/52/EU will not be transposed into UK legislation until 2017. It is anticipated that the UK Government will issue amended EIA Regulations in the next 12 -18 months to allow sufficient consultation prior to the 2017 deadline. However, we encourage the gradual adoption of these changes in the intervening period. These include:
- considering how climate change, human health and resource efficiency can be assessed more effectively within EIA;
- enhancing the approach taken by developers to pre-assess proposals to enable a screening decision to be made;
- improving, potentially, the quality of the writing and review of environmental statements, by ensuring those who undertake the work have competent expertise to do so;
- considering how efficient and effective monitoring strategies can be created to track the delivery and success of design elements and mitigation that aims to avoid, prevent or reduce significant adverse effects on the environment; and
- introducing penalties for infringements.
Outline of main changes
The below is not an exhaustive summary of all changes to be made by the Directive but sets out the key amendments which will influence EIA practice.
The screening process has been amended quite substantially and the changes aim to strengthen the process. Where screening is required for a project (i.e. Annex II projects – those that only require EIA if significant effects on the environment are likely) a Screening Report will need to be submitted.
The types of project listed at Annexes I and II are unchanged. The selection criteria for Annex II projects at Annex III have been changed, however, and a new Annex IIA has been added setting out what information developers should provide if seeking a screening opinion. In particular, impacts from waste or use of natural resources would have to be explained. In addition, specific consideration will need to be given to impacts of a project on, and its resilience to, climate change, and impacts on cultural heritage and landscape. Information on risks from major accidents or disasters, cumulative effects with any existing or planned projects and any mitigation works which would reduce the environmental impacts would also need to be included. Many authorities will already require this sort of information, but in future the changes will mean a more detailed level of information provision and analysis will be required at an earlier stage.
Mitigation measures can be considered during the screening process, however, these will have to be specified and there is a requirement to retain such measures in the final development proposals (i.e. most likely by way of a Planning Condition or Planning Agreement). That extends the life of EIA beyond decision-making.
Competent authorities will need to provide enhanced explanation of their screening decisions and will have to state which developer-proposed design and mitigation measures must be included as part of the scheme for a scheme not to be considered as being ‘EIA development’.
The scoping process will remain voluntary for developers but the EIA Report will be required to be based on the scoping opinion where one is requested.
The Directive inserts clearer requirements for the assessment of the impact of projects in a number of areas including biodiversity, climate change, landscape and disaster risks (which would include, for example, flooding). Whilst these will generally be covered, this is likely to require an increased emphasis in these areas. Additional requirements are incorporated on topics with which developers have become familiar, including assessment of baselines and cumulative effects. Cumulative effects are defined as those arising from the development with other existing and approved developments, taking account of existing environmental problems and resource use.
3. EIA REPORT
The output of the assessment will be presented as an 'EIA Report', rather than the previous 'Environmental Statement'.
There is also a requirement to employ 'accredited and technically competent experts' to produce and verify the EIA Report. A definition is not provided and it will therefore fall on Member States to draw their own conclusions.
The Directive places the decision maker under a duty to consider whether the EIA Report is up to date at the point of decision, and provides powers to require further information. This may trigger more requests for developers to supply further and updated information. There is also a new requirement for the consent to contain a "reasoned conclusion by the competent authority on the significant effects of the project on the environment".
All in all, EIA Reports are going to get bigger rather than smaller.
The Directive introduces new monitoring obligations which can apply to both the implementation and management of the project. Where development consent is granted, consideration must be given to whether any appropriate measures to monitor the significant adverse environmental effects of the project are required. The measures must be proportionate to the nature, location and size of the project to ensure they are not unnecessarily onerous. Fortunately, to avoid duplication, existing monitoring arrangements may be relied on, if appropriate.
Also, conflict of interest must be avoided and the specific scenario is given of where a competent authority is both the developer and decision maker and in such circumstances a functional separation would need to be implemented.
5. TIME LIMITS
As part of the aim to remove inconsistencies between Member States, the proposals include a minimum public consultation period on the EIA report of 30 days, which is greater than the current UK position. Additionally, authorities must provide screening decisions within 90 days of receipt of the necessary information. This deadline can be extended in exceptional circumstances where the nature, complexity, location or size of the project so required.
The EU has given some bite to the Directive as Member States are required to produce rules to govern any infringements of the Directive. Penalties must be ‘effective, proportionate and dissuasive’ but the nature of penalties to be imposed is at the discretion of the Member States which leaves huge uncertainty for potential developers.
The Directive is aimed at ensuring a high level of protection of the environment and human health through the establishment of common minimum requirements for the assessment of the effects of certain projects on the environment during the consenting process. Clearly, the amendments strengthen existing legislation in an attempt to achieve this aim, and developers, as well as competent authorities, need to be acutely aware of future requirements in an area that attracts a high level of legal challenge.