Imbalance in the EIA process

11th January 2015

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  • Local government


Adam Robinson

Tim Pearce, senior planner at the Landmark Practice explores the need for parity in screening and scoping in EIA.

Many EIA-related decisions have been overturned by the courts due to failure by the local planning authority (LPA) to comply with the procedural requirements of the EIA regulations. The regulations are still, however, acknowledged by many planning officers as among the least studied pieces of legislation in the planning system.

In 2008 the Planning Officers Society (POS) published a practice note for EIA which noted that, for many planners, EIAs relate only to large developments and therefore public sector planners only need to be aware of the regulations very infrequently. Today, while the inexperience of some LPAs may still be a factor in regulatory failure, probably the most pressing problems are caused by reduced resources, tight deadlines and lack of technical support.

Continuing cuts to LPA resources since the POS's practice note mean that, in many authorities, a point has been reached where officers struggle to deliver basic planning functions. While most support the government's objectives to streamline processes, many consider that effective delivery of LPA functions in EIA will be hindered by lack of resources.

Deadlines and delegated authority

Delegated officers are responsible for delivering properly informed screening and scoping opinions within the EIA regulatory period of three and five weeks respectively, unless otherwise agreed in advance in writing. The screening opinion establishes the need for EIA, while the scoping opinion identifies the content.

While the POS states: "It will usually be best practice if a properly trained validation team initially considers the need for an EIA as part of carrying their validation checks," limited resources inevitably necessitate prioritisation of workload to planning officers.

Where responsibility for adopting a screening opinion rests with an individual officer, a delayed start to the process increases the pressure on the officer to meet the deadline. In many instances this leads either to deadlines being missed, or procedural errors made in the rush to meet deadlines. Errors ranging from absent dates or signatures to irrationality and inconsistency of the adopted opinion with subsequent decisions have provided generous case law for legal challenge of EIA procedures.

The balance between screening and scoping

Although the authority must complete its formal screening opinion within 21 days, there is currently no mandatory requirement for consultation. Many LPAs have established protocols to ensure that consultee responses are received in time to inform the opinion but, where the consultees also have limited resources, they cannot guarantee that technical comments will be made within the required period.

Planning officers do not always have the expertise or experience to make a judgement on specific issues that must be considered within an EIA screening. Without a mandatory consultation requirement, 'protocols' for strict timescales cannot be enforced, leaving the planning officer to either delay the process while waiting for consultee responses, or attempt a decision without full information.

There is similarly no mandatory requirement for an applicant to seek a scoping opinion for EIA, and this is not anticipated to change when the UK transposes the new EIA Directive 2014/52/EU. However, if an applicant does request a scoping opinion, the LPA has a mandatory requirement to consult statutory consultees, who are in turn obliged to respond. The LPA must provide its opinion within five weeks.

This is counterintuitive. Both screening and scoping are equally important in ensuring that the LPA has the right information to reach a properly informed position from which to determine the planning application. But LPA resources are inevitably more focussed on scoping, since it is statutory, than on screening, even though the latter carries greater risk of legal challenge and is subject to a shorter timetable for decision.

EIA Directive (2014/52/EU)

Transposition of the new EIA Directive (2014/52/EU) may reduce imbalance as it states that LPAs will have to deliver its screening opinion "within a period of time not exceeding 90 days" (article 4, paragraph 6). Conversely, transposition of mandatory pre-submission of EIA screening reports could frontload review of potentially unwieldly screening requests on LPAs.

At this stage this is all rather speculative. Transposition, required by 2017, is not anticipated before 2016, and delivery may vary across devolved administrations. Genuinely streamlining EIA processes needs procedural errors to be minimised. This requires parity of the screening and scoping processes, in both timescales and mandatory consultation, and the resources to deliver.

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