Changes to the EIA Directive
by Hilary Brett
On the 12th March 2014, the European Parliament agreed proposed amendments to the Environmental Impact Assessment (EIA) Directive. The new Directive is now expected to be approved by the EU Council in a matter of weeks, at which point it will formally be passed into law. The amendments to the Directive are aimed at improving efficiency, providing greater harmonisation between Member States and improving the quality of EIAs undertaken.
A key change is the strengthening and regulation of the Screening process and Screening reports will now be a required for any development over Annex II thresholds, which includes urban development such as residential and retail projects of greater than 0.5 hectares.
There is also a requirement for a comprehensive Screening to be undertaken which now includes baseline information and design measures to avoid likelihood of effect. Following the principles established in the Co-operative Group Limited v Northumberland County Council case that a Local Planning Authority (LPA) must have sufficient information available to adopt a negative Screening Opinion, it is already best practice in the UK to base Screening Requests on technical assessments; this is now formalised in the new Directive. In addition any mitigation taken into account in Screening process must now be incorporated into the scheme at application stage and included in Conditions on grant of Planning Permission. These revisions to the process are likely to be more onerous on developers given the requirement for further information at the Screening stage.
Scoping of the EIA remains voluntary rather than mandatory, however if a Scoping Opinion is sought the EIA must be based on the Scoping Opinion issued by the LPA. Current best practice is to undertake Scoping and to base the assessment on the requirements of the Scoping Opinion to ensure that the LPA’s and Statutory Consultee’s comments are limited as much as possible during the determination of the application.
The importance of the role of professionals is enhanced with the EIA being undertaken by “competent experts” only; currently anyone can prepare and submit an Environmental Statement. There is no definition of “competent expert” and there is no mandatory accreditation required as part of the new Directive. Once submitted “competent authorities” must examine the EIA Report to form conclusions of significance of effects; this could be a challenge for LPAs whom don’t currently have their own EIA specialists and may require a greater reliance on the use of consultants in the review of EIA Reports.
Greater emphasis is to be placed on the monitoring of significant adverse effects once development is commenced and operational, with penalties imposed on developers if the measures aren’t implemented. This could cause difficulties in the case of large scale outline planning applications where the project is to be built out over a number of years with a range of developers delivering each phases; where will the liabilities for delivering the monitoring fall?
The deadline for the transportation of the new Directive by Member States is April/May 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. It should also be noted that projects which have been Screened, Scoped or where an Environmental Statement is submitted before transposition into UK law, can follow the existing 2011 EIA Regulations and avoid the new mandatory processes.