Proposals for significant amendments to the environmental impact assessment regime that would add to the requirements on developers, are currently under consideration at EU level

Changes are proposed to the rules governing environmental impact assessment (EIA). EIA is the process of gathering information on the environmental effects of a proposed development and is a mandatory part of the planning process, governing many major schemes including large renewable energy schemes.

Under the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011, reg 3 a local authority cannot grant planning permission pursuant to an EIA application unless satisfied that all relevant environmental information has been considered. EIA is therefore a crucial step in the planning process which inevitably requires the appointment of consultants and engagement with a range of statutory consultees.

On 26 October 2012 the European Commission published proposed changes to the EIA Directive 2011/92/EU. The changes are designed to increase the rigour of EIA; however they would also place an additional burden on developers looking to navigate what is already an onerous stage in the planning process. The proposals are currently being refined by the European Council and Parliament, and a new directive is expected in 2014 with transposition into UK law anticipated by 2016. The changes focus on three key areas: screening procedure, quality and analysis of EIA, and inconsistencies in the EIA process.

Screening procedure

Article 4 aims to streamline the screening procedure and ensure that EIA is only required where it is clear that significant environmental impacts exist.

For projects listed under annex II of the directive, a new obligation at screening stage is proposed requiring the developer to provide information on the characteristics of the project, its potential impact on the environment, and the measures envisaged in order to avoid or reduce significant effects. The detail is set out in a new annex IIA; it includes:

  • the physical characteristics of the whole project during the construction and operational phases;
  • the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected;
  • the measures envisaged to avoid, prevent or reduce any significant adverse effects on the environment.

Under the current system, a lack of information at the screening stage may lead one planning authority erroneously to insist on EIA whilst another may fail to identify when EIA would be appropriate. By encouraging developers to provide additional information early in the process, authorities should reach more informed and consistent decisions on whether EIA is necessary. A greater degree of certainty as to the outcome of the screening process may be of particular significance to SMEs concerned about the cost of assessing the environmental impact of a proposed development.

Amendments to annex III of the directive, which sets out the screening criteria, clarify existing criteria and take into account areas of growing environmental concern such as risks to human health, disaster risks, climate change and cumulative impacts.

New provisions governing the screening decision itself are also proposed. Decisions by the planning authority must include specific information about the proposed project and the reasons why EIA was deemed necessary or not. Proposals also include new monitoring requirements under article 8, which can require developers to continue to assess significant environmental effects once development consent has been granted.

Quality and analysis of EIA

The new proposals introduce mandatory scoping, with amendments to annex IV of the directive providing a more detailed breakdown of what the content of the environmental statement should include.

Of particular significance is the more comprehensive assessment of alternatives. Annex IV requires: “A description, of the technical, locational or other aspects (e.g. in terms of project design, technical capacity, size and scale) of the alternatives considered, including the identification of the least environmentally impacting one, and an indication of the main reasons for the choice made, taking into account the environmental effects.”

Whilst detailed consideration of alternatives may protect against adverse environmental effects of a project, it also introduces a potentially onerous requirement on developers. Under the current directive, developers are only obliged to produce “an outline of the main alternatives”. It is not yet clear how this new obligation can be reconciled with concerns expressed by member states about the global economic situation and the increasing regulatory burden on SMEs.

Other changes to annex IV include:

  • requiring specific consideration of the “baseline scenario” (the existing state of the environment);
  • requiring a description of aspects of the environment likely to be significantly affected by the project, to include human health, climate change and vulnerability to manmade and natural disasters;
  • a description of the likely significant effects on the environment of the proposed project resulting from the risks to human health and the cumulative impact with other projects.

There is also a new obligation under article 5 which requires developers to use accredited experts when undertaking EIA. Alternatively the decision making authority must have the environmental statement verified by an accredited expert. This should improve quality control throughout the EIA process.

Inconsistencies in the EIA process

The proposal aims to make the new EIA Directive a “one stop shop” for a range of assessments required under other European legislation. This includes integrating or coordinating EIA with other legal requirements such as the Habitats Directive and SEA Directive.

The proposal also seeks to remove inconsistencies amongst member states as to how planning authorities govern the EIA process. The changes, designed to increase the speed of decision making and encourage greater transparency, include:

  • public consultation shall be between 30 and 60 days in length;
  • the EIA must be completed within three months of the completion of the consultation period;
  • the planning authority must reach a screening decision within three months (six months in exceptional circumstances).

The introduction of time limits should be encouraged, provided the additional reporting requirements do not overly burden the planning authority and reduce the quality of the screening and scoping exercise. Equally, requiring the EIA to be completed within three months is a positive move provided it does not adversely affect the quality of the developer’s environmental statement.

Other important changes

There are several other important changes introduced by the proposals which I cannot expand on in this article. These include extending the definition of “project” to include demolition works (thereby bringing demolition works within the scope of the EIA regime) and, under article 1, defining EIA for the first time.

The Author
Alastair McKie, partner, Anderson Strathern LLP  
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