Taking the full impact

This article reports on the important consequences of R (on the application of Baker) v Bath and North East Somerset Council [2009] Env LR 27, in which it was held that the English EIA Regulations did not properly implement the EIA Directive.

Baker involved a successful judicial review of planning permissions for an extension to a waste management facility due to the failure by the planning authority to apply the directive properly. The authority had sought to limit the application of the threshold in the directive to the further development, rather than assess the cumulative effect that that development would have on the development as a whole.

Baker is of immediate relevance in Scotland because the relevant parts of the English EIA Regulations are the same as those in the Environmental Impact Assessment (Scotland) Regulations 1999 (sched 2, para 13). The Scottish Government has consulted on the required change to the regulations to bring them in line with the requirements of the EIA Directive following Baker.

Full measurement

The directive’s main purpose is to ensure that in considering whether to give consent for a project, the decision is taken in the knowledge of any likely significant effects on the environment. That procedure is known as environmental impact assessment (EIA), which is applied to projects through the EIA Regulations.

The output of that procedure may be a requirement that the developer submit (along with its application for consent) a compliant environmental statement (ES). This is common for significant infrastructure projects, including energy projects. There are publicity requirements for EIA, and the ES often contains the backbone of the environmental arguments which support a project to which it relates. The competency of EIA and the resultant ES is often the focus of challenge from third parties, whether at project consent stage or subsequently by way of judicial review.

The directive identifies the types of project requiring EIA. Annex I lists certain projects which are likely to give rise to certain significant environmental effects and will always require EIA. Annex II gives member states more discretion in determining other projects which require EIA. This discretion is exercised via the “screening procedure” on the basis of stated criteria, with projects requiring EIA only where significant environmental effects are likely. Despite the greater flexibility in relation to Annex II projects, member states must take account of criteria provided in Annex III when transposing the directive.

Under the EIA Regulations as they currently stand, where there has been a change or extension to a sched 2 development requiring EIA, and where significant environmental effects are likely, the thresholds and criteria required for determination of assessment are currently applicable only to the change or extension and not to the development as changed or extended. In Baker, the High Court held that the current (English) regulations failed to implement the directive properly by seeking to limit the consideration of environmental effects through EIA in this way, as opposed to assessing the cumulative effects of the project in its entirety.

Corrective action

In light of this recent decision, with important implications UK-wide, the Scottish Government has produced a consultation paper which consolidates and updates Part II of the EIA Regulations to take account of Baker. Reflecting the decision, it is proposed that the thresholds are applicable to the development as a whole once modified.

Upon initial reading, this may appear as only a minor amendment to the regulations. However, it substantially alters the meaning and scope of this provision. Currently the EIA Regulations are very clear that EIA in such circumstances is applicable only to the change or extension of the development, whereas, now highlighted by Baker, these provisions are to be applied to the whole development, encompassing such changes or extensions.

The Scottish Government consultation also proposes amendments to the regulations in respect of changes or extensions to sched 1 developments – those requiring mandatory EIA. Current provisions contain separate thresholds for changes or extensions to such developments and, again, are specifically applicable to the change or extension, not the development as a whole. Following Baker, the consultation proposes a catch-all amendment that all developments being changed or extended and falling within sched 1 require to be screened to determine the need for EIA. This case-by-case determination will introduce a much more straightforward approach.

It is common for existing major projects to be modified or changed (such as an extension to a wind farm by the addition of new turbines), and clearly these proposed changes to the EIA Regulations will be of relevance in terms of the scope of EIA for the modification or change to a project.

Alastair McKie, Partner, Anderson Strathern LLP