The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the 2017 Regulations”), in compliance with EU Directives, govern the legal requirements for EIAs in the context of developments granted planning permission under the Town and Country Planning Act 1990. The 2017 Regulations do not apply to developments given consent under other regimes which will be subject to separate EIA regulations.
What is an Environmental Impact Assessment?
The purpose of 2017 Regulations is to protect the environment by ensuring that local planning authorities, when deciding whether to grant planning permission for a development, do so in the full knowledge of their likely significant environmental effects and duly take them into account in the decision-making process. The regulations set out a procedure for identifying those developments which should be subject to an EIA, and for assessing, consulting and coming to a decision.
The aim of EIA is also to ensure that the public are given early and effective opportunities to participate in the decision-making procedures.
What developments are affected?
Developers are required to carry out EIAs only when applying for planning permission for certain types of development. These are listed in the 2017 Regulations at Schedule 1 (EIAs are mandatory) and Schedule 2 (initial screening required to determine whether an EIA is required). Typically, Schedule 1 developments are:
- Crude-oil refineries; Nuclear power stations; Chemical installations; Waste water treatment plants; Construction of motorways; Construction of airport runways and long-distance train lines; and Installations dealing with asbestos extraction/processing of products containing asbestos.
Schedule 2 typically covers developments in the following industries:
- Agriculture; Extractive industry; Silviculture; Aquaculture; Energy; Metal production and processing; Chemical; and Food.
Preparing an Environmental Statement for assessment?
Where an EIA is required, developers will need to submit an environmental statement. To ensure the completeness and quality of the environmental statement, the developer should ensure that it is prepared by competent experts. As a general guide, the following will be required:
- description of the project including information relating to the project site, design and size;
- description of any measures they envisage taking to reduce or avoid adverse environmental effects;
- any data which can help identify/assess the effect that the project may have on the environment; and
- outline of the main alternatives that the developer has considered, indicating the main reasons for their choice and taking into account the environmental impact.
Determining planning applications subject to EIAs?
There are specific arrangements under the 2017 Regulations for considering and determining planning applications that have been subject to an EIA. These arrangements include consideration of the adequacy of the information provided, consultation, reaching a reasoned conclusion on the significant environmental effects of the proposed development, publicity, and informing the consultation bodies and public of the decision and its justification. The local planning authority must take into account the Environmental Statement, the responses to consultation and any other relevant information when determining a planning application.
Will the EIA obligations be affected by Brexit?
The EIA Directive is one of three key EU Directives (the others being the SEA Directive 2001 and the Habitats Directive 1992). At this stage, ahead of any final terms being agreed, it is unclear whether Brexit will change the situation.
In principle, the UK will not be required to comply with the EU obligations post Brexit. This means the government will be free to amend, repeal or substitute the 2017 Regulations beyond the boundaries and requirements of the EU Directives. Equally, this could mean a loosening or tightening of the EIA obligations, or a mixture of both. In the short term, early indications are that the government will likely attempt to ensure that requirements for EIAs remain.
EIAs can be complex and difficult to navigate without expert advice. If you need help with anything relating to EIAs, or are wondering what post-Brexit changes could mean for your development, talk to a specialist environmental lawyer.