Draft Town and Country Planning (EIA) Regulations 2017 - Briefing Note by Susan Raine

Draft Town and Country Planning (EIA) Regulations 2017 - Briefing Note by Susan Raine

The EU EIA Directive was amended in 2014 and Member States currently have until the 17th May 2017 to transpose the amendments. Whilst the consultation on transposing the amended Directive was originally scheduled to occur during Summer 2016, it was delayed following the outcome of the EU Referendum.

DCLG are now consulting on the transposition of the 2014 Directive, and the following note focusses upon on the key issues identified within the Draft Town and Country Planning (EIA) Regulations 2017, published as part of the DCLG consultation.

Transition to the 2017 Regulations
The existing 2011 EIA Regulations will still apply to any project where a request for either a Scoping Opinion, or an Environmental Statement (ES) has been submitted prior to the 16th May 2017.

It is therefore advised that those currently working on a project that has not yet been subject to scoping should aim to request a Scoping Opinion (or submit the application) prior to the 16th May 2017 to ensure that the 2011 Regulations still apply to the project.

The key changes and potential issues identified within the Draft 2017 Regulations are summarised below.

Changes to Screening
Preliminary Assessments
The changes to screening are not as substantial as first expected when the 2014 EU Directive was published. The Directive states that the competent authority shall make its determination ‘taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment’. This led to concerns within the industry that extensive baseline surveys would be required prior to making a screening request. However, DCLG has not included the terms ‘preliminary verifications or assessments’ within the Draft 2017 Regulations.

Consideration of Mitigation within Screening
The key change to screening proposed under the Draft 2017 Regulations is that developers would be able to demonstrate that their project does not constitute EIA development by outlining their proposed mitigation measures, which would prevent any significant adverse effects on the environment. Specific details of how the implementation of these measures would be enforced has not yet been provided.

Screening Timeframes
Under the existing 2011 Regulations, an authority must adopt a screening opinion within 3 weeks of receiving the request, or a longer period as agreed in writing with the applicant. The 2014 EU Directive introduces a requirement that screening determinations be made ‘as soon as possible’, and within a period of time not exceeding 90 days. The Draft 2017 Regulations are maintaining the 3 week timeframe, although they now state that any longer period agreed in writing must not exceed 90 days.

There is the risk that LPAs will view this stated limit of 90 days as their new maximum timeframe, as there is currently no clear incentive to provide it as soon as possible. It is hoped that following the consultation, and publication of the revised PPG, additional incentives or protection will be provided to developers to prevent unnecessary and substantial delays to projects.

Changes to Scoping
The Draft 2017 Regulations state that where a scoping opinion has been requested the submitted ES must be based on “the most recent scoping opinion or direction issued (so far as the proposed development remains materially the same as the proposed development which was subject to that opinion or direction)”.

This requirement for an ES to be based upon the scoping opinion is new, and may discourage developers from seeking one. It is suggested that following the 16th May, robust Scoping Reports are submitted alongside requests for scoping opinions, and developers work closely with the LPA to ensure the scope of the EIA is appropriate and proportionate.

The wording of this requirement also appears to imply that there will be the opportunity to request more than one Scoping Opinion.

‘Sufficient Expertise’
The Draft 2017 Regulations state that an ES must “be prepared by persons who in the opinion of the relevant authority or the Secretary of State, as appropriate, have sufficient expertise to ensure the completeness and quality of the statement”, and that the ES will contain a statement setting out how this has been met.

It is also stated that “The relevant authority or the Secretary of State, as the case may be, must ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement”.

Thus, both those preparing the ES, and those examining it, must have ‘sufficient expertise’ to do so. No guidance has yet been provided on what constitutes ‘sufficient expertise’. If guidance is provided, it is expected that the benchmark will comprise a combination of relevant experience, qualifications and membership of the appropriate professional body.

There are concerns that under the Draft 2017 Regulations LPAs could reject an ES following submission on the basis that it has not been prepared by persons with ‘sufficient expertise’ (in their opinion). It is therefore hoped that some form of procedure will be put in place that will allow a written agreement to be made between the developer and LPA that the persons preparing the ES have ‘sufficient expertise’. This would need to be done in the early stages of a project, and could potentially be included as part of screening or scoping.

Information to be Included
The information to be included within an ES has been amended within the Draft 2017 Regulations, and new topics that must be considered include human health and climate change (comprising the impact of the project on climate (e.g. greenhouse gas emissions), and the impact of climate change on the project).

There is currently a lack of standardised industry guidance on the assessment of some of the new topics, particularly human health, but it is expected that guidance will be published in the near future. Until then, proposed methodologies should be agreed as part of scoping where possible.

Consultation timeframes
The minimum timeframe for public consultation on the ES has been increased to 30 days within the Draft 2017 Regulations.

Monitoring
The Draft 2017 Regulations require that the decision to grant planning permission must now include the consideration of whether it is appropriate to impose monitoring measures, via conditions or planning obligations. Where monitoring is imposed, these must be proportionate to the project and significance of the relevant environmental effects. In addition, existing monitoring arrangements may be used if appropriate in order to avoid duplication. If monitoring is imposed, it must be considered “whether to make provision for potential remedial action”.

Details on who will be responsible for undertaking, enforcing and reviewing the effectiveness of monitoring measures are not provided. It is hoped that this information is provided within the updated PPG, in addition to details of how to ensure monitoring is effective, and not simply a tick box exercise.

Further Information
The DCLG consultation closes on the 1st February 2017 and the Town and Country Planning (EIA) Regulations 2017 will be adopted on the 16th May 2017. We will provide a further update following this date.

Contacts

Susan Raine Susan Raine
Senior EIA Co-ordinator
+44 (0)1782 276700
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