Steve Pearce on the differences between assessing big infrastructure projects and standard developments
Under EU law, construction projects requiring planning consent that are likely to have a “significant effect” on the surrounding environment must undergo an environmental impact assessment (EIA). An EIA evaluates local habitats, species and communities, considers the potential impacts of a project and how environmental effects can be mitigated.
Nationally significant infrastructure projects (NSIP), such as the construction of a new power station or road, often have impacts across a large area, stretching across multiple planning authorities. In England and Wales, requirements for NSIP EIAs are outlined in the Infrastructure Planning EIA Regulations 2009 (as amended in 2012), rather than through the more familiar Town and Country Planning EIA regime.
While the requirements for information to be included in an environmental statement are identical to those in schedule 4 of the Town and Country Planning EIA Regulations 2011, the procedural requirements of the 2009 Regulations, the Planning Act 2008 and the national planning policy place additional demands and create some interesting challenges for EIA practitioners.
Planning authority
The Planning Inspectorate’s national infrastructure directorate (NID) is responsible for operating the planning process for NSIPs and for examining applications for development consent. The NID makes a recommendation to the secretary of state, who decides whether to grant or refuse consent. The national infrastructure planning section of the inspectorate’s website provides a great deal of information relating to NSIP applications, including:
- details of individual NSIP applications (at the pre- and post-submission stages);
- information regarding the application process;
- links to legislation and policy (including national policy statements which provide the framework for the NID’s recommendations);
- government guidance; and
- a series of advice notes.
The inspectorate has published 16 advice notes covering a range of issues relevant to NSIP applications. A number of the notes are directly concerned with the EIA process or with matters informing the final assessment, such as stakeholder consultation, screening and scoping, the Rochdale envelope approach, and Habitat Regulations assessment.
The sixth advice note also provides guidance on preferred document formatting and referencing. While the notes are not statutory guidance, they provide advice on what inspectors expect and prefer to see during their examination of an EIA. The notes support a standard approach to a number of issues beyond the detail provided in the 2009 Regulations.
Screening and scoping
If a project is categorised as an NSIP under the Planning Act 2008 (as amended by the Localism Act 2011), it does not necessarily follow that the project is EIA development – though most are likely to be.
Schedules 1, 2 and 3 of the 2009 Regulations are largely the same as those of the Town and Country Planning EIA Regulations 2011. The notable exception is that schedule 2 of the 2009 Regulations excludes screening thresholds and criteria. Meanwhile, the inspectorate’s seventh advice note states: “The European Court of Justice has held that projects identified in schedule 2 should be given a wide scope and broad purpose.”
For a NSIP development that could be considered a schedule 2 project, the basis on which an EIA can be “screened out” is dependent on whether it can be demonstrated that the project is unlikely to have any significant effects on the environment, with no regard to any general indicative thresholds. A screening opinion must be sought for a NSIP from the secretary of state, who must then adopt a screening opinion within 21 days of receiving a notification.
A request for a scoping opinion may also be submitted to the secretary of state, the procedure and requirements for which are outlined in the inspectorate’s seventh advice note. The secretary will consult prescribed and, potentially, non-prescribed consultees and adopt a scoping opinion within 42 days of receiving a request.
The NSIP process takes a precautionary approach and casts a wide consultation net, both technically and geographically. Scoping responses may be received from consultees who are unlikely to have a strong interest in the project, due to the nature of the proposals or their distance from the site.
Owing to the regulatory requirement to consult neighbouring local authority areas, as well as any within the zone of visual influence of a project, multiple local authority responses are also likely to be received, which may necessitate follow up communications and/or meetings to ensure mutually acceptable assessment work.
According to the inspectorate’s seventh advice note: “Applicants should consider carefully the best time to request a scoping opinion. In order to gain the most from a scoping opinion, applicants should consider requesting the opinion once there is sufficient certainty about the description of the proposed development and the main elements likely to have a significant environmental effect.”
This is important advice, as the scoping opinion is the main element of pre-application feedback relating to the EIA that will be received from the NID and the secretary of state. It is advisable to ensure that the scheme is sufficiently defined and certain prior to scoping, and that the approach to identification of likely effects and the proposed methods of assessment are adequately described in the scoping report.
Consultation with stakeholders to agree the details of assessment before submitting the scoping report can also be advantageous if time allows. Given that the scoping stage is an important opportunity to obtain EIA-specific comment from the secretary of state, it is crucial to provide sufficient information, particularly with regards to any issues that are proposed to be omitted from the assessment.
The importance of consultation
A key difference between the EIA requirements for NSIP projects and those for Town and Country Planning projects is the need for formal consultation. The standard EIA process does ordinarily feature some level of consultation, but this may be limited to specific stakeholders, such as the Environment Agency and other relevant bodies.
Public consultations can be undertaken, but they are largely dependent on the nature, scale, location and likely effects of the proposed project. The requirements relating to consultation with regards to a NSIP project, however, are more formally defined.
While many of the consultation requirements for a NSIP are likely to be fulfilled by dedicated members of the project team, the input required by the EIA team should not be underestimated. Ongoing survey and assessment work will be needed to inform the consultation process, and to update published material, such as documents informing stakeholders of project progress, lists of frequently asked questions and assessment findings.
EIA practitioners working on NSIPs should be aware that these stakeholder consultations do have the potential to confuse and overload non-public consultees. Confusion can arise over what is formal and what is non-statutory public consultation. For example, informal consultation may take place during the scoping of the EIA, before the scoping request has been submitted to the secretary of state.
The secretary of state will subsequently consult relevant stakeholders formally with regards the applicant’s scoping opinion request, and then there will be further formal consultation in line with requirements of the Regulations – potentially with multiple consultation phases.
Confusion among consultees can be compounded by the potential similarity in the requests and the required responses. It is therefore important during initial contact to outline the planned consultation phases with any consultees unfamiliar with the NSIP process.
The consultation report must also include details of the how relevant responses have been taken into account, which demands careful consideration of the timing of consultation to ensure comments can feasibly be acted upon. Such details are also likely be relevant for inclusion in the environmental statement.
Preliminary data
In March 2009, the local government department launched a consultation on its proposals for the Infrastructure Planning EIA Regulations. The draft legislation included a requirement for NSIP developers to consult on preliminary environmental statements. However, respondents felt that such a pre-application consultation was inappropriate and the requirement was amended in the final legislation to require consultation on “preliminary environmental information” (PEI) instead.
Paragraph 8.19 of the explanatory memorandum to the 2009 Regulations details this change, but also goes on to state: “…clearly in order to be able to consult properly, any pre-application consultation will need to identify the likely environmental effects of the proposal.”
There is relatively little guidance regarding PEI, with the most notable being the department’s guide on the Planning Act 2008 pre-application process, published in January 2013. Unsurprisingly, the format and content of PEI varies considerably, from short summary documents to full draft environmental statements.
Regulation 2 of the 2009 Regulations defines PEI as information that has been compiled for inclusion in an environmental statement and is reasonably required to assess the effects of the development. This would suggest that any EIA work drafted at the PEI stage should be published and if the work is sufficiently advanced, this could therefore resemble a draft or partially complete environmental statement.
Looking at the explanatory memorandum, PEI consisting of a draft environmental statement does not necessarily seem inappropriate; as the 2013 guidance notes, though, applicants may not be in a position to provide a full environmental statement during their consultation and it may not be the most appropriate way to present information on impacts and mitigation to all consultees.
However, given the requirement for PEI, it would seem a wasted opportunity to not invite comment on as much EIA work as possible at the PEI/pre-application stage. The guidance acknowledges this, while highlighting that clarity of information is key.
The formalisation of pre-application consultation frontloads the NSIP EIA process, with the aim of teasing out contentious issues as part of pre-application work and reducing the number of points that require discussion during examination. The process also documents the resolution of issues and any remaining open points to present this evidence as part of the application.
Formalised consultation throughout the EIA is the major difference between the process for NSIPs and for standard developments, and the element that is creating the most interesting challenges for practitioners.
