From 16 May 2017, new rules apply to the environmental impact assessment (EIA) regime in England with the introduction of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (2017 Regulations).
The 2017 Regulations add new complexities to the EIA process and mean that developers will need to frontload their environmental work when applying for planning permission.
There are transitional provisions dealing with environmental statements, requests for screening opinions or directions and requests for scoping opinions or directions submitted before 16 May 2017, and dealing with screening and scoping opinions or directions made or adopted before 16 May 2017, all of which continue to be governed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (2011 Regulations).
The key changes include the following.
Definition of EIA
EIA is defined as a process consisting of the preparation of an environmental statement; any consultation, publication and notification required by law; and consideration of the environmental statement when considering whether planning permission should be granted. Other than being a useful reference point, this is likely to have little impact in practice.
The 2017 Regulations restrict the existing exemption for defence projects so that it only applies where a project (or part of a project) has defence as its sole purpose, but extend it to include projects which have the response to civil emergencies as their sole purpose. It is not clear what types of project would fall within the latter category.
In the list of environmental factors to be considered as part of the EIA process, 'human beings' is replaced with 'population and human health' and 'flora and fauna' is replaced with 'biodiversity'. On the face of it, these revised factors are wider and may lead to increased complexity in the relevant chapters of the environmental statement. The 2017 Regulations also clarify that the EIA should cover the 'direct and indirect significant effects' of the proposed development on the listed environmental factors. This suggests that minor impacts need not be considered in great detail, if at all.
Time limits on screening decisions
Under the 2011 Regulations, developers could agree to extend the time period within which the local planning authority had to adopt a screening opinion indefinitely. Under the 2017 Regulations this extension cannot exceed 90 days from the date of submission of the screening application, even if the developer and the local planning authority agree.
Screening options, information and criteria
The 2017 Regulations now clarify that a developer may provide a description of any features and/or measures envisaged to avoid or prevent what otherwise might have been significant adverse effects on the environment. This gives developers the opportunity of seeking to demonstrate that their project will not be likely to have significant adverse effects on the environment through earlier consideration of mitigation/avoidance measures. While this may increase the amount of work required before submitting a request for a screening opinion, it may also increase the number of projects that are 'screened out' at the screening stage.
Environmental statements to be based on scoping opinions
Environmental statements are now to be 'based on' the most recent scoping opinion or direction issued. While this appears prescriptive, the requirement is qualified in that environmental statements need only be based on the most recent scoping opinion/direction so far as the proposed development remains materially the same as the proposed development which was subject to the opinion/direction. This allows for minor changes to projects after a scoping opinion/direction has been issued. However, it may mean that more work needs to be carried out prior to requesting a scoping opinion.
There is a new requirement to use 'competent experts' in preparing environmental statements, which must be accompanied by a statement from the developer outlining the relevant expertise or qualifications of those competent experts. The term 'competent expert' is not defined.
While the changes are not significant, they may take time to bed in. However, they present an opportunity for potential objectors to scrutinise developers' and planning authorities' compliance with the new requirements and to use any non-compliance as grounds for bringing legal challenges to decisions to grant planning permission.