The full suite of EIA Regulations in the UK has been amended with effect from 16 May 2017, giving effect to the EU Directive 2014/52/EU.
Some 17 sets of regulations in the UK have been replaced or amended, nine of those applying to Scotland.
This advice note focuses on the changes effected by The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017.
These changes are discussed in the Scottish Government Planning Circular 1/2017 The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017.
There are transitional arrangements for the existing regulations to apply to cases already underway, broadly these are cases where:
• an environmental statement,
• a request for a screening opinion/direction, or
• a scoping opinion/direction
The broad framework remains the same. The main changes are:
• Terminology - Those who are used to referring to an environmental statement or ES, will find that it is now an EIA report (or perhaps an EIAR?)
• Topics - There are changes in the factors and topics that are to be taken into account in the screening, scoping and assessment of any proposal.
• Mitigation - Greater emphasis is put on the mitigation of possible significant effects and the subsequent monitoring of measures to secure that mitigation, with a duty on the decision maker to fully consider the necessity and extent of monitoring measures.
• Appropriate Assessment – It is possible to take account of other up-to-date relevant assessment work and co-ordination of EIA reports with appropriate assessments under Habitats and Birds Directives.
• Expertise - The role of a “competent expert” in preparing submissions and the need for “sufficient expertise” in examination by the competent authority are introduced, albeit without definition of either term.
Some of the changes are a reflection of current good practice among professionals involved in the EIA process, but others are more fundamental changes.
Frontloading - Much greater emphasis is placed on frontloading by the provision of more information at the outset and subsequent reliance on that information, including monitoring to ensure that proposed measures are implemented and the effects of a development are as anticipated.
Expertise - Although there is no definition of a competent expert, the developer is required to ensure that any EIA Report is prepared by such a person.
However, there is benefit in a competent expert preparing any screening request and supporting information at the outset. Such expertise could enable a determination that a project does not qualify as EIA development. (See below at Screening).
Alternatively, that expertise may be needed to ensure the smooth progression of any planning application that does qualify as EIA development.
It will be worthwhile thinking about appointing environmental consultants at the outset, even for smaller projects, rather than an existing design team.
Similarly, there is no definition of the “sufficient expertise” which the planning authority or Scottish Ministers must ensure that they have, or have access to.
This may be a matter of some concern for authorities that have faced cut-backs and who no longer have biodiversity officers or other specialists, but may give rise to some sharing of services.
Screening – More information is required at the screening stage, which can now take account of any proposed mitigation that removes or reduces identified significant impacts.
Topics - The additional information to be included in EIA Reports must include descriptions of: the development; reasonable alternatives relevant to the proposal and its specific characteristics and the reasons for selecting an option, including a comparison of the environmental effects; relevant aspects of the current status of the environment and its likely evolution (in the absence of the development).
Reasonable alternatives may relate to the development design, technology, location and the size and scale of the project.
Many of the factors from the 2011 regulations remain but greater detail is specified and new topics are introduced.
For example; “soil” includes reference to organic matter, erosion, compaction and sealing, and “water” includes references to hydromorphological changes, quantity and quality. Human health is among the factors specifically mentioned in the 2017 regulations.
Time limits - The time limits that apply to the provision of screening and scoping opinions and directions remain generally unaltered.
Requests for screening opinions and directions should be addressed by the authority or Scottish Ministers within 21 days of receipt, unless a longer period (up to 90 days) is agreed in writing.
Previously the period was unlimited. Now, where exceptional circumstances relating to specified factors exist, the 90 day period may be extended but only by service of notice on the developer stating the justification for the extension and a date by which the opinion is to be adopted or the direction is to be made.
Again time limits applying to scoping opinions and directions, and notification of the requirement for an EIA Report where it is considered necessary but has not been submitted with a planning application, remain generally unaffected.
Mitigation - The effect of the regulations is to place greater emphasis on mitigation. Any means of mitigating possible significant adverse effects should be considered at screening stage.
The decision notice for a planning application for EIA development must include a description of the mitigation measures.
Appropriate Assessment - Account is to be taken of available results of other relevant assessments in preparation of the EIA Report, and in the screening determination.
What are the likely consequences of the changes?
As always there is an element of crystal ball gazing when trying to predict the effects of legislation. As mentioned, many changes reflect existing good practice.
Planning authorities will need to review their procedures to ensure compliance with the regulations, e.g. the requirements for publication of information and documents on their websites. Careful attention will need to be given to the drafting of decision notices.
Consultants will also have to beware of copying from previous documents. Legal audit of EIA Reports will be more important during the next few years while the new procedure beds in.
With the increased emphasis on mitigation and monitoring, developers will have to consider early in a project if there are sufficient land rights for the necessary planning conditions/ section 75 obligation.
There may be an increased likelihood of legal challenges to decisions following on from the need to justify competency of experts or sufficiency of expertise, perhaps by objectors to proposed development.
The Planning EIA Regulations 2017 include other extensive provisions, some of which repeat current practice.