EIA practitioners are concerned that the government's failure to define who qualifies as a ompetent expert' in preparing environmental statements (ES) could lead to delays or legal challenges.
The revised EIA Directive states that a developer must ensure the ES is prepared by competent experts and that the authority deciding the outcome of a planning application must have ‘sufficient expertise’ to examine the statement.
But in its consultation on transposing the directive, the communities and local government department (DCLG) has omitted any definition of the phrase. Instead, it says responsibility for deciding whether an ES has been prepared by someone with ‘sufficient expertise’ lies with the local authority deciding the outcome of the application.
Josh Fothergill, IEMA policy and practice lead on EIA, said the approach carried significant risk of delays and costs for a developer should the planning officer disagree with an EIA professional’s credentials.
This view was echoed by James Alflatt, planning partner at consultancy Bidwells and registered EIA practitioner, who said: ‘We believe this remains poorly defined, and could therefore be susceptible to challenges.’
The consultation document also states that no definition is needed because the term is sufficiently clear, and is also likely to depend on the circumstances of each case. The DCLG believes that most decision-makers either have staff with enough expertise to examine the environmental statement in their teams, or could easily access expertise, including through Natural England and the Environment Agency.
But Rufus Howard, director of renewables and marine development at consultancy Royal HaskoningDHV and chair of IEMA’s impact assessment network, said council budget cuts might have left many planning authorities without the relevant expertise. ‘They can hire a consultant but that’s not cheap. The Environment Agency and Natural England have also had massive staff cuts [and] I’ve heard it’s very hard to get meetings with them,’ he said.
Howard did not believe the DCLG’s wording transposed the directive correctly, since it uses the phrase ‘sufficient expertise’ to describe the person preparing the environmental statement, while the directive uses this phrase to refer to the person assessing it.
However, Richard Harwood, QC at 39 Essex Street, doubted that the lack of definition for the phrase ‘competent expert’ would be problematic. ‘Really it just means that they’re properly qualified, which isn’t usually an issue in EIA cases. It reflects good practice and what the law and secretary of state would reasonably expect.’ It was likely the phrase had been included in the directive to prevent bad practice in other EU member states, he said.
Simon Marsh, head of sustainable development at the Royal Society for the Protection of Birds (RSPB), said much of what the directive required was already best practice in the UK. ‘The consultancy sector is well established in issues such as use of competent experts and avoiding conflict of interest,’ he said.
Other changes proposed include extending to 30 days consultation on a statement. Scoping will remain voluntary for developers but the ES must be based on the most recent scoping opinion. Developers must consider potential risks of major accidents or disasters, including those caused by climate change. There is also greater emphasis on mitigation during screening and monitoring of significant environmental impacts post-consent.
18th January 2017