THE NEW EIA REGULATIONS: WHAT HAS ACTUALLY CHANGED?

The post below was first published on our UK Real Estate Development blog

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 came into force on 16 May 2017, implementing the 2014 EU Directive. Similar regulations have also come into force under the infrastructure planning regime. Largely, the new regulations are a fairly extensive and, in places, trivial set of amendments. The question is, will they have a tangible impact on established EIA practice?

• Greater consistency and quality, more time and cost?
• The scope of the environmental assessment
• Some procedural changes worth noting
• Will Brexit have an effect?

Greater consistency and quality, more time and cost?

The key theme of the regulations is greater consistency and quality throughout the EIA process. Gone are some of the more ambiguous requirements. Standardisation is the order of the day.

• Screening requests must now describe the project, geographical sensitivity and likely significant effects on the environment (rather than "a brief description" of possible effects).
• The scoping request must include new information including the "location and technical capacity" of the proposed development, not just a brief description of the "nature and purpose".
• Where a scoping opinion or direction is issued, the Environmental Statement (ES) must be based on that decision.

Welcome changes? Sort of. The standardisation of procedures sets a higher bar for the provision of environmental information, which should increase the overall quality of engagement between developers, the planning authority and consultees. The checklists are more explicit and, in theory at least, greater clarity should stop time being wasted by repetition and reduce project exposure to legal challenge. Unfortunately, more explicit checklists mean longer checklists. The list of information that should be included in the ES has grown considerably. The new requirements will be subject to increased scrutiny by both decision makers and objectors, and a more forensic examination of the new procedures will be necessary. Inevitably, this will have a corresponding impact on developers' resourcing requirements.

The scope of the environmental assessment

• The regulations include more examples of the type of effects that should be assessed, including many that are now higher up the political agenda (for example factors such as population, human health and climate change).
• There is a new duty to consider the "expected" significant effects arising from the vulnerability of developments to major accidents or disasters. However, where does one draw the line on "foreseeability"? And what exactly needs to be assessed given that such incidents are not a "likely" significant effect of the development? Clarification will need to be sought at the scoping stage.
• A new requirement to consider ongoing monitoring measures appears to be geared at ensuring that the burden of EIA continues indefinitely into the operational phase of the development. Whether this happens in practice is less clear, particularly as the regulations are silent on associated remediation requirements.

One gets the sense that the objective of the European law makers was to ensure that nothing slips through the net. The problem is that the EIA net casts itself too wide. This blurs the line over whether the content of the ES is legally sound and increases uncertainty over whether sufficient steps have been taken to "rule out" possible impacts of development. The requirement for the decision maker to provide a "reasoned conclusion" that is "up to date" also creates uncertainty around the adequacy of the assessment. A risk-averse project promoter may feel it necessary to explore expensive, and potentially unnecessary, environmental assessments and mitigation proposals. Meanwhile, the engines are turned off and no spades hit the ground. These issues are particularly acute at the screening stage; developers could be forgiven for feeling like establishing whether they need an EIA is becoming increasingly similar to carrying out the EIA.

In fairness, the regulations now encourage applicants to submit details of measures envisaged to prevent what might have otherwise been significant adverse effects on the environment when submitting their screening request. This may encourage developers to consider mitigation or avoidance measures earlier in the project cycle, thus having the broader impact of reducing the level of projects subject to EIA.

Some procedural changes worth noting

There are some procedural changes that could catch out developers (and planning authorities) as new projects come forward:

• developers must consult on the ES for a minimum period of 30 days (replacing the respective 21 day and 28 day consultations under the town and country planning and infrastructure planning regimes);
• there is a new 90 day limit (subject to certain exceptions) on extending a screening decision; and
• the ES must be accompanied by a statement outlining the expertise or qualifications of the "competent experts" who contributed to its preparation (which term is undefined).

Will Brexit have an effect?

The UK Government published the "Great Repeal Bill" on 30 March which makes arrangements for ensuring that EU-derived statutory instruments will continue to apply after the date that the UK leaves the EU. The UK Government's commitment to the Bill was reaffirmed in the Queen's Speech on 21 June. Whilst there must be some prospect of the UK seeking to reduce the burden of EIA post-Brexit, it will be necessary for developers to comply fully with the regulations in the short to medium term.

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