Elizabeth Davies from Barton Willmore explains when EIA is required for section 73 applications.
At Barton Wilmore we regularly prepare section 73 (s73) applications to seek minor material amendments. In the environmental planning team we often find ourselves advising on the EIA implications and the most robust approach to take. A s73 application is considered to be a new planning application and therefore the EIA regulations apply.
EIA is a litigious area and the environmental statement (ES) is often where objectors or their legal advisors would look first to seek to derail proposed developments. It is therefore important to understand if and how EIA may need to be taken into account when preparing a s73 application and to ensure the EIA process is watertight to minimise delays and the risk of third party legal challenge.
Rarely are two projects or approaches ever the same, but based on our experience we have found some common themes.
The EIA regulations require the screening and assessment of a project subject to a s73 application to consider the development as amended when assessing the potential for likely significant effects.
Application that did not originally require EIA
This is probably the most straightforward case. Was an EIA required with the original planning application? If the answer to this question is no, then in our experience you are unlikely to need to prepare an EIA to accompany the s73 application. This is almost certainly the case for developments under the thresholds set out in schedule one and two of the regulations (unless the circumstances since the planning application was originally approved have significantly changed).
However, a s73 is a new planning application and therefore where the development is listed under either schedule one or schedule two and satisfies the criteria or thresholds set, a local planning authority must carry out a new screening exercise and issue a screening opinion to determine whether EIA is necessary.
For developments that require EIA, the first task is to request an EIA screening opinion, regardless of the changes being sought and whether an EIA was prepared to accompany the original planning application.
Application that was originally EIA development
According to planning practice guidance, where an EIA was carried out on the original application, the planning authority will need to consider if further information is needed for the original environmental statement to comply with regulations. It states: ‘Whether changes to the original ES are required or not, an environmental statement must be submitted with a section 73 application for development which the local planning authority considers to be EIA development’.
The tricky part is evaluating whether changes to the environmental statement are required, or whether the original satisfy the regulations. To inform this decision we would consider:
- the date the original ES was prepared (including changes to baseline environmental conditions (such as the ecological baseline, transport movements, air quality), committed developments, updates to planning policy, and any changes to guidance affecting the assessment methodology used); and
- the nature of the amendments being sought.
If the ES is under a year old, the baseline conditions are current, and there are no changes to committed developments, policy or guidance, and the amendments sought do not affect the findings of the ES then it could be sufficient to submit the original provided this is explained somewhere in the application documentation.
However, if changes have occurred, and the amendments being sought are more significant (such as amendments to the scale or positioning of built development), then the most robust approach would be to provide further environmental information in the form of an ES addendum.
In some cases, particularly where the age of the ES is such that significant updates are required, preparing an entirely new ES could be appropriate.
This point also relates back to screening s73 applications discussed above. EIA may have been screened out for the original scheme, but if circumstances have changed such as a cluster of new committed developments coming forward or a new sensitive area has been designated nearby, the potential exists for likely significant effects that were not identified previously.
