Town and Country Planning (EIA) Regulations 2017 – England and Wales

Briefing note by Susan Raine, Senior EIA Co-ordinator

Following the amendment to the EU EIA Directive in 2014, the new Town and Country Planning (EIA) (England) Regulations 2017 have now come into force, as of the 16th May 2017.

The key changes that you need to be aware of are set out below.

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

Therefore, if you are working on a project and a request for scoping (or an ES) has not yet been submitted, you will now need to prepare your ES in accordance with the new 2017 Regulations.

It should be noted that if a screening request has been submitted, then the project will only be screened in accordance with the 2011 Regulations. The new 2017 Regulations will still apply for the preparation of the EIA.

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 2017 Regulations.

Consideration of Mitigation within Screening
The key change to screening under the 2017 Regulations is that developers are now 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.

Screening Timeframes
Under the 2011 Regulations, an Authority was required to 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 2017 Regulations are maintaining the 3-week timeframe, although they now also state that any longer period agreed in writing must not exceed 90 days. There are concerns that this stated limit of 90 days will be viewed as a new maximum timeframe as there is currently no clear incentive to provide it as soon as possible, causing unnecessary delays to projects.

Changes to Scoping
The 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)”.

Although basing an ES on the scoping opinion has always been considered good practice, this new requirement for it to be so may discourage developers from seeking one. Consultants and developers should ensure robust Scoping Reports are submitted alongside requests for scoping opinions, and should 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.

Competent Experts
A new requirement is that an ES must be prepared by ‘competent experts’. The Draft 2017 Regulations originally placed the responsibility on LPAs to determine what constituted a competent expert. However, the adopted 2017 Regulations have now changed this, placing the responsibility on the developer instead.

The new 2017 Regulations also state that “The relevant planning authority or the Secretary of State must ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement”. For LPAs that currently have limited resources, the examination of an ES may be outsourced to consultants to ensure there is ‘sufficient expertise’.

No guidance has yet been provided on what constitutes a ‘competent expert’ or ‘sufficient expertise’. However, the 2017 Regulations state that an ES will need to include a statement from the developer “outlining the relevant expertise or qualifications” of the persons who prepared the ES.

Information to be Included
The information to be included within an ES has been amended within the 2017 Regulations, and new topics that must be considered include:

• Human health; and
• Climate change – comprising the impact of the project on climate (i.e. 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 these new topics. New guidance is being published by professional bodies such as IEMA, however until a standard methodology is established 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 2017 Regulations.

Under the 2017 Regulations, planning authorities can now impose monitoring measures as a condition of planning permission. In doing so, LPAs must:

• Ensure the monitoring is proportionate to the project and significance of the relevant environmental effects;
• Use existing monitoring arrangements if appropriate in order to avoid duplication; and
• Consider 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 within the 2017 Regulations. It is assumed developers and LPAs can agree these details as part of the planning condition, and further information may be provided in the updated PPG.

The Welsh 2017 EIA Regulations
The new Town and Country Planning (EIA) (Wales) Regulations 2017 also came into force on the 16th May 2017. The changes are largely similar to those set out above, however there are two key differences.

• Scoping: Within the new Welsh 2017 Regulations planning authorities now have 8 weeks to adopt a scoping opinion, whilst the limit remains at 5 weeks in England.
• Competent Experts: The Welsh 2017 Regulations have placed the responsibility on the planning authority to determine if a person has ‘sufficient expertise’ to prepare an ES.

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