As we head full on into Spring, we’ve been keeping an eye on various changes within the industry that will impact on some of the larger and more environmentally sensitive projects which we deal with over the coming months.
One such development is the amended Environmental Impact Assessment (EIA) regulations that have been in transition for the past three years but are now due to come into force on the 16th May.
We recently tuned into a really useful webinar hosted by The Planner magazine which featured contributions from Nicholas Pearsons Associates, Russell Cook Solicitors and the Institute of Environmental Management and Assessment. Here’s a heads up of what you need to know about the impending changes.
First Things First…
First up – what’s not actually changing is the types of projects that are definitely or potentially liable for an EIA (as listed in Schedules 1 and 2 of The Town and Country Planning (Environmental Impact Assessment) Regulations 2011) or the screening thresholds for the less sensitive Schedule 2 projects. Thus for example a residential development exceeding 5ha, has more than 150 houses or also includes more than 1ha of urban development; or an urban development without any houses that exceeds 1ha; or an industrial estate or urban development project exceeding 5ha in area might still require an EIA and you should definitely submit a Screening Opinion to establish this. Also, no mention of demolition in the changes, but we always recommend a request for a Screening Opinion for any development involving demolition.
So What’s Changing?
The screening process by which Local Planning Authorities (LPA) determine whether an EIA is required with a proposed development is changing. A standardised set of screening requirements are being introduced, which will be embedded into the Regs themselves to avoid any ambiguity. A screening request to the LPA will still need to be accompanied by a plan and description of development, but more details of the proposals will be necessary up-front and there will be an opportunity to put forward specific design features/mitigation measures. Such ‘front-loading’ will clearly have time and cost applications for applicants, however the ability to offer mitigation at this early stage may well negate the requirement for a full assessment and ES further down the line, so there are definitely some benefits to be weighed up here. Any proposed mitigation measures will then have to be incorporated into the final planning application, particularly if they are ‘clinchers’ to the EIA not being required, and these will have to be tracked (and enforced) somehow, although there is no regulatory process in place for this yet.
Once submitted, LPA’s are still obliged to respond to Screening Requests with their adopted Opinion within 3 weeks, with an option to extend this to 90 days if necessary, and given the increased level of detail and the likely number of additional consultees involved (tantamount to mini-EIA’s in some cases), it’s very probable that this facility will be used more and more. They are also now formally required to provide reasoning for their screening conclusions, an onerous obligation which may open them up to challenge.
The other key change is to Scoping Requirements; that is the list of potential topic areas that should be addressed if (following your Screening Opinion) you are obliged to carry out an EIA for your development. These have now been extended to include population, biodiversity, land, soil, water, air, climatic factors, material assets, cultural heritage, landscape and major accidents/disasters (this last category added following Fukoshima). Again, this broader remit makes for a significant amount of potential assessment work, and both applicants and LPA’s are encouraged to take a robust approach to the scoping of Environmental Statements, only including those topic areas that are likely to experience significant environmental effects.
In short, the implications of the changes for applicants involve more up-front design and screening assessment work, but potentially more flexibility to negotiate away EIA requirements in the long-run. For LPA’s, the amendments land them with more onerous and accountable assessment responsibilities, and pressure to gear up to the tracking, enforcement and monitoring of mitigation measures. With limited LPA expertise and resources, we may well anticipate an increase in the use of planning obligations and pre-commencement conditions and a greater onus on the applicant to ensure mitigation is in place for any development.
The changes to the EIA regs kick in on the 16th May (any screening or scoping request submitted before then will be considered against the old regime), just weeks before we embrace another period of political turmoil (or stability, depending on your colours). With the Housing and Planning Act making its way through commencement as well, there are plenty more changes afoot for the planning and development industry…