Consultation on strengthened environmental impact regulations for all new developments

  • Insight

27 October 2016

This consultation is of direct relevance to developers, local planning authorities and stakeholders involved in new development proposals. The deadline to respond is Monday 31 October 2016.

The majority of environmental protection law affecting new development arises from the EU, notably the Environmental Impact Assessment (EIA) Directive 2011/92/EU. This directive requires that qualifying development (usually but not limited to large scale development) is assessed in terms of its potential environmental impacts and that  the developer has to prepare an “environmental statement” to accompany a planning or related application. Directive 2011/92/EU is given effect by the EIA Regulations 2011 which are proposed to be revoked with effect from 17 May 2017.  EIA compliance is a time consuming and costly process, and legal compliance is often the focus for legal challenges by those opposing development.

New Directive

A new and strengthened EIA Directive 2014/52/EU (“New Directive”) with additional requirements, including the potential requirement  for ongoing development monitoring, is due to be transposed into Scots law under new sets of EIA Regulations  by 16 May 2017. This will replace the current regimes.  The regimes covered are planning, energy, marine licensing, trunk roads, transport and works projects, agriculture, land drainage, forestry, flood management, ports and aarbours and controlled activities.

The New Directive acknowledges the growing importance of environmental issues in policy making and aims to ensure the same emphasis is given to environmental issues in the assessment and decision-making process. This is broadly in line the with the Scottish Government’s approach towards sustainable development. The requirements of the new EIA Regulations will mean both applicants and planning authorities having to alter their approaches to EIA. The new EIA Regulations for planning applications are intended to apply to applications made from 17 May 2017, unless a “scoping opinion” has been requested before then. Transitional arrangements are proposed for development proposals requiring EIA submitted prior to 16 May 2017 and applicants need to  consider carefully if their developments will be subject to the existing EIA Regulations or alternatively subject to the new EIA Regulations.

Consultation

Despite Brexit and the intended repeal of the European Communities Act 1972, the Scottish Government is pressing ahead with these changes. A consultation which seeks views on changes to the following eight EIA regimes: planning, energy, marine licensing, trunk roads, transport and works projects, agriculture, land drainage, forestry, flood management, ports and harbours and controlled activities is open until 31 October 2016. There is still time to respond. To see more on responding to the consultation, please see here.

Key issues in the consultation

The key issues in terms of the consultation are summarised below:

The stated aim of the New Directive is to simplify matters in line with smarter regulation, and improve the level of environmental protection.  Article 1(2)(g) describes the EIA process, stage by stage, and the change from the term “environmental statement” that must accompany every qualifying application to “environmental impact assessment report”.  Where there is an obligation to carry out an assessment under the directive and also under the Habitats Directive and/or Birds Directive, article 2(3) requires a co-ordinated or joint procedure to be used which is to be welcomed.  Amendments have been made under article 3(1) to the broad requirements of the EIA process, including replacing “human beings” with “population and human health”, and “flora and fauna” with “biodiversity”.

Article 4(4) introduces a more detailed list for screening information, and article 4(5) clarifies the basis for screening.  Article 5(1) sets out the required content of the EIA report, and adds a new provision that where a “scoping opinion” is issued the report must be based on this.

Article 5(3) addresses quality concerns and requires that the developer must ensure that the EIA report is prepared by “competent experts”, and that the competent authority must ensure it has access to sufficient expertise to examine the report.

Article 6(1) considers which bodies are to be consulted, and article 6(2) and (5) requires electronic publication and addresses publication requirements.

Article 6(7) sets out new minimum time frames for public consultation which, for example, will be 28 days for energy and planning consents.

Article 8a(1) requires that the decision to grant development consent shall incorporate at least the reasoned conclusion and that any mitigation measures regarding monitoring of effects are identified and set out in the consent.

Article 8a(4) requires that development consents should (in a proportionate manner) set out the parameters and duration of any monitoring required. Article 8a(6) requires that the competent authority must be satisfied that the reasoned conclusion or any EIA decisions are “up to date”. This addresses concerns that such decisions can have a limited shelf life.

The requirement to inform the public of decisions to grant or refuse development consent (article 9(1)) shall include the outcome of consultations and the information gathering exercise.  Article 9a deals with “objectivity” in order to avoid conflicts of interest and is based on European Court of Justice case law. In circumstances where the organisation is developer and the consultation body and/or the competent authority, an appropriate separation must be made to avoid conflicts of interest when undertaking duties under the directive.

The draft Town and Country Planning (Environmental Impact Assessment ) (Scotland) Regulations 2017 have been produced by the Scottish Government’s EIA Transposition Team in order to incorporate the New Directive into Scots Law for the planning system.

Transition to the new regime

The ‘New Directive’ contains transitional arrangements at Article 3. They provide that where applications for screening submitted prior to 16 May 2011, the screening application will be subject to the current law. Where developers submit Environmental Statements or request scoping opinions prior to 16 May 2017, again the current law will apply. For planning applications these transitional arrangements are contained at Regulation 57 in the draft Regulations. 
Of all the new measures, the requirement to monitor is the one which will have  the biggest potential impact on developers, landowners and local planning authorities.  Under Article 8a of the New Directive, and Regulation 30 of the draft Regulations, decision makers will be obliged to consider whether monitoring measures are required. Specifically, under the draft Regulations, they must consider “whether monitoring measures are proportionate to the nature, location and size of the proposed development and the significance of the effects on the environment”. The requirement of proportionality refers to the nature and duration of any monitoring requirements.

In addition, if monitoring measures are required, the decision maker must consider whether provision should be made to require appropriate remedial action. The draft Regulations suggest that this would be provided for by way of Section 75 agreements or planning conditions which must be enforced by the planning authority.

Further information

For further information on the EU Directives, the Consultation, its subsequent outcome and all other planning matters, please contact: Alastair McKie or Kirsty Jamieson.

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