Elin Fradgley from Waterman outlines how the new Town and Country Planning Regulations 2011 have impacted the environmental impact assessment (EIA) screening process.
Screening is the process by which it is determined whether an environmental impact assessment (EIA) is needed for a particular project, and it is the first and often most critical step. For large-scale projects EIA is mandatory. For other projects, however, the determining authority must form an opinion as to whether an EIA is required taking, into account a range of factors.
The screening stage has proved to be particularly susceptible to legal challenges, with an extensive case history of successfully quashed planning permissions. The long-awaited Town and Country Planning (EIA) Regulations 2011, which came into force in England on 24 August 2011, have amended the EIA screening procedures and have had a knock-on effect on developments.
Increased transparency
All screening opinions, regardless of their conclusion on the need for EIA, must now be accompanied by a statement giving the full reasons for the opinion provided. There was no such requirement under the previous Regulations and this justification will be available for all to scrutinise on the public record.
The new requirement for local planning authorities to justify every screening decision highlights the importance of ensuring screening requests include site-specific interpretation of the possible environmental effects of a project, based on sound technical evaluation. After all, it is this information the determining authorities rely on to enable them to form reasoned and robust opinions.
Heightened risk
Perhaps the most important change to come out of the new Regulations is the introduction of a third-party right of challenge to the EIA screening process. This adds an extra dimension to the level of risk associated with screening because any interested person can now ask the secretary of state to make a screening direction where they disagree with a determining authority’s opinion. The secretary of state can also now provide a screening direction without being asked. Going forward, it will be interesting to monitor the level of any such intervention and the outcome.
Screening of other project stages
For developers wishing to alter existing planning permissions, despite perhaps having already undertaken an EIA, consideration must be given to the need for supplementary EIA. If the relevant thresholds are met, screening is now required where the change to the approved development “may have significant adverse effects” on the environment. Previously, screening thresholds applied only to the change or extension. The reasons for this new requirement are logical, but its practical application is open to interpretation.
Since 2006 the need for EIA has had to be considered for reserved matters applications and the discharge of certain planning conditions alike. The 2011 Regulations introduce a useful limitation for multi-stage consents, in that EIA screening is only required where the development is likely to have significant environmental effects which were not anticipated when the initial planning permission was granted. However, it remains unclear how factors such as the age, and therefore the validity, of the original EIA should be addressed in screening. For most outline planning applications, where only broad development parameters are defined, an additional level of assessment at the reserved matters stage would seem inevitable.
The recent Save Britain’s Heritage case introduced important planning controls over demolition with further EIA screening implications. Building demolition is now regarded as a development and as such it is important that determining authorities issue a screening opinion where works are likely to have significant environmental effects.
The future?
The 2011 Regulations have only been enforced for a few months, but there remain some areas within the screening process which are perhaps open to interpretation. No doubt the Regulations will be subject to further testing in the courts, but we should be prepared for:
- The need for greater technical rigour in EIA screening.
- A more cautious approach to EIA screening being adopted by determining authorities and developers alike.
- An increased risk of screening errors, particularly in relation to the application of EIA to multi-stage development consents and with changes or extensions to projects.
- The risk of third-party challenges to screening opinions and, potentially, intervention by the secretary of state in the screening process.
EIA screening remains the most common reason for permitted EIA developments being challenged. Awareness of the recent legislative changes within determining authorities is likely to be variable, which is perhaps understandable given the Regulations came into force at a time when all eyes were on the overhaul of national planning policy. Furthermore, new government guidance on the changes has yet to be published. These factors underline the importance of technical rigour and understanding being applied in the screening process, to protect developers’ interests while ensuring EIAs are not undertaken unnecessarily.
This article was written as a contribution to the EIA Quality Mark’s commitment to improving EIA practice. To discuss the themes raised by the article with other environmental professionals visit IEMA’s LinkedIn group.
Elin Fradgley is a technical director at Waterman Energy Environment & Design. For further information contact: [email protected]
