EIA: the regimes change

Where projects are likely to have significant environmental effects, these must be assessed and evaluated by the consenting authority before consent can be given. This process is referred to as environmental impact assessment (“EIA”) and is required by Directive 2011/92/EU (“EIA Directive”). The main aim of EIA Directive is to provide a high level of protection for the environment and contribute to the integration of environmental considerations in the preparation of projects, with the overall aim of reducing environmental harm.

EIA Directive sets out a procedure that must be followed for certain types of project before consent can be given. It has been transposed into Scottish legislation by a number of regulations. As part of that procedure, projects are screened to establish whether EIA applies, and if so it is the developer’s responsibility to provide information to enable the consenting authority properly to assess the environmental effects of a project, and if it grants consent, what conditions should be applied by way of mitigation. That information is consolidated into what was previously referred to as an “environmental statement”, but under new regulations is now to be known as an “EIA report”.

Although relatively small projects that affect a sensitive environment may require EIA, it is often the larger projects that do so. It is a costly process and may take months or years where bird or other longlasting surveys require to be undertaken.

Changes from above

The EIA Directive has been significantly amended by Directive 2014/52/EU (“2014 Directive”). Although article 50 for Brexit has been triggered, the EIA Directive as amended must be complied with as the UK and Scotland continue to be members of the EU and as such are obliged to transpose it into Scottish legislation.

In Scotland there are 11 separate EIA regimes, each with their own consenting authority. Last year the Scottish Government consulted on changes to eight of these (Planning, Energy, Marine Licensing, Roads, Transport & Works Projects, Agriculture, Land Drainage and Forestry), and from this readers will identify the wide range of projects that are affected.

On 16 May 2017, a number of regulations were brought into effect including, for the planning system, the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017, already amended by the Environmental Impact Assessment (Miscellaneous Amendments) (Scotland) Regulations 2017, which came into force on 30 June. The former, subject to transitional and saving provisions, revoke the similarly named regulations of 2011.

Whilst preparing an EIA report is a technical matter undertaken by the developer’s experts, frequently it is perceived flaws in the EIA process that are challenged by way of objection or judicial review. The EIA report is very often the backbone of the developer’s case and therefore the focus of challenge.

Not all projects require an EIA, but project consent (e.g. a planning permission) can be challenged where there has not been an EIA and one was required. Where an EIA is undertaken, project consent may be challenged on the basis that the scope and content of the EIA and EIA report are not legally compliant.

New requirements

The 2017 EIA Regulations, as amended, have brought about a number of important changes that all developers, consenting authorities and their advisers should be aware of. These impact across all of the regimes and include the following:

• The information required for a screening opinion must be set out in more detail, and reference is now made to demolition works and the opportunity to identify mitigation measures to overcome likely significant effects.
• Screening opinions and directions must be provided to applicants within 21 days unless an extension is agreed with the developer, in which case the period should not exceed 90 days unless exceptional circumstances apply.
• The EIA report must be based on the most recent scoping opinion or direction.
• The content of the EIA report now includes the following topics: climate change, natural disasters or hazardous risks, biodiversity (replacing flora and fauna), and human health impacts.
• It is clarified that the EIA only requires to assess the likely significant effects on the environment, and not all effects.
• There is a need to consider reasonable alternatives which are relevant to the development and its specific characteristics.
• The developer is required to ensure that the EIA report is prepared by “competent experts”, and provide an outline of their relevant expertise or qualifications.
• Cumulative assessments are more clearly defined, with the requirement to assess cumulation with other existing and/or approved development.
• Joint and/or co-ordinated procedures for projects which are subject to the Habitats and Wild Birds Directives as well as EIA are introduced.
• The consenting authority is required to reach a reasoned conclusion on the significant effects of the development on the environment, taking into account its assessment of the EIA and EIA report.
• Consenting authorities must perform their duties in an objective manner and so as to avoid situations giving rise to a conflict of interest.
• The decision to grant consent must include, where appropriate, a description of any measures for monitoring the significant adverse effects of the development on the environment. This is perhaps the most controversial aspect of the changes; it is intended that either planning conditions or planning obligations will be used to impose these measures.

The 2017 Regulations as amended will not apply where the developer has, in connection with an application or appeal, submitted an environmental statement prior to 16 May 2017 or where a screening opinion has been sought prior to that date, in which case the 2011 Regulations continue to apply.