EIA and long-distance sewer projects
Chris Rochfort asks: does the withdrawal of Circular 02/99 mean long-distance sewer projects can avoid EIA in the UK?
Development carried out by the UK statutory wastewater undertakers is often 'permitted development' (Part 13, Class A and B of the Town & Country Planning (General Permitted Development) Order 2015, and see also the Use Classes) for planning purposes. In the case of cross-country, long-distance sewers, this is namely that the development is not above ground. Nonetheless, should such a project be considered 'EIA development', all permitted development rights are lost.
A cross-country sewer development has historically been considered Schedule 2 development under section 10(l) where the area of the development is more than 1ha. The longstanding guidance on EIA, Circular 02/99, clarified that 10(l) long distance aqueducts development included water and sewerage pipelines.
However, Circular 02/99 was withdrawn by the government on 7 March 2014, and this distinction is absent from its successor, the online government guidance. This effectively allows proponents of sewer pipeline schemes to argue that they are not aqueducts and sit outside the remit of EIA. There remains potential to capture sewer development if it meets the requirements to be considered Schedule 2, 10(h) – which includes flood relief works – if it can be argued that the construction of the sewer is in response to sewer flooding.
Stantec acted as planning and environmental consultant on a recent sewer project for a UK sewerage undertaker and consulted the local minerals and waste planning authority via an informal permitted development letter. This project was more than 1ha in size and less than 5km in length, thresholds that under the now-withdrawn Circular 02/99 would have historically seen this project formally screened for EIA. The fact that the project sits outside the EIA regime (based on current guidance) was stated in the letter. However, the planning authority determined to screen the project for EIA in any event, stating: “While now out of date, [Circular 02/99] clarifies that water and sewage pipelines should be considered in a similar vein to oil/gas pipelines and long distance aqueducts, for screening purposes.“ While this planning authority did opt to screen the project, it could be argued that it was wrong to have done so – and that many authorities would have accepted the interpretation of the consultant.
It would appear that, since the withdrawal of Circular 02/99 and its replacement by the online government guidance, the installation of a long-distance sewer has ceased to become EIA development with respect to Schedule 2, 10(l). One should consider whether it is really in the spirit of the EIA Directive for the installation of, for example, a 20km large-diameter cross-country sewer to avoid the need for screening (and potentially full EIA). Such a project would only be subject to the non-planning consents regime and the self-policing internal procedures of those sewerage undertakers.
Taking into account what is stated in Article 2(a) (“Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment“), one could question whether the UK's exclusion of large sewer developments is consistent with the intention of the EIA Directive. It seems likely that the omission of major sewer projects is just an oversight associated with the transfer to online guidance on the gov.uk website, rather than a deliberate omission as part of the simplifying of the planning guidance undertaken by the coalition government between 2010-16. This gap in UK practice may in future be resolved through simply being reinstated into the guidance.
Chris Rochfort is a principal environmental consultant at Stantec.
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