'Technical' changes to EIA

9th September 2014

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Phillip Martin

Stephen Tromans considers proposals from the communities department to raise screening thresholds in England

There is a natural tendency when faced with a 98-page document from the communities and local government department (Dclg), enticingly entitled Technical consultation on planning, to file it at the bottom of a very high “to read” pile.

A consultation paper under that name was issued in July and requires responses by 26 September 2014 (p.12).

To ignore it would be misguided because it contains some important and far-reaching proposals on issues such as: neighbourhood planning; permitted development rights; planning conditions and their discharge; statutory consultation procedures; major infrastructure projects; and, importantly, environmental impact assessments (EIAs).

As the foreword by the new Dclg minister, Brandon Lewis, makes clear, it is all about unlocking economic and housing growth, while maintaining environmental protection, in a planning system perceived as “convoluted, confusing, expensive and in many cases ineffective”.

“Unnecessary” screening

Section 5 of the document deals with EIA thresholds. Dclg proposes to raise these for some project categories listed in schedule 2 to the Town and Country Planning (EIA) Regulations 2011 to reduce the number of schemes that would be subject to what it describes as “unnecessary” screening.

EIA procedures are described in Technical consultation on planning as going beyond those normally required for planning applications, increasing the workload of planning authorities and developers, and adding to the cost of making an application.

The government believes – probably not unreasonably – that, fearing a possible legal challenge, some local authorities have required EIAs for projects that are not likely to give rise to significant effects on the environment.

Equally, the document notes that some developers undertake assessments voluntarily to avoid the risks of legal challenge, and that “developers are carrying out increasingly large and overly complex environmental assessments”. It is certainly difficult to argue with that last assertion.

The government finds support for its argument that the EU EIA Directive (2011/92/EU) is being “over-implemented” by referring to the number of requests for screening directions made to the secretary of state between 2011 and 2014.

It says that, of the 160 “urban development projects” screened by the secretary, only 20% needed an EIA.

Raising thresholds

Dclg’s focus for change to thresholds is on two types of development: urban projects and industrial estate schemes. Collectively, these represent the most common project type subject to EIA in England and fall within annex II of the EIA Directive.

The consultation paper recognises that, although member states have some discretion in determining whether annex II projects should or should not be subject to EIA, there are several overriding principles that arise from European court case law.

In deference to those, no change is proposed to projects in defined sensitive areas, which require screening in all cases, irrespective of size.

Further, the new and higher screening thresholds have been set so as to remain significantly lower than existing indicative thresholds provided as guidance for use in screening, and account has been taken of the possible cumulative effects of a number of similar-sized projects coming forward at the same time.

For industrial estate projects, the proposed increase in the threshold is from 0.5 hectares to 5 hectares – compared with an indicative threshold of 20 hectares. Urban development projects are an extremely diverse category, and the current threshold is 0.5 hectares.

The existing guidance for use in screening for sites that have not previously been developed refers to a site area of more than 5 hectares; or providing more than 10,000 square metres of new commercial floor space; or having “significant urbanising effects” – for example, a new development of more than 1,000 dwellings.

Dclg is proposing to raise the screening threshold for development of housing over 5 hectares of land, including up to 1 hectare of non-residential development to cater for mixed-use schemes.

This equates to developments of around 150 units, allowing for the average housing density of 30 dwellings per hectare.

The view is that housing schemes of this scale, outside sensitive areas, are unlikely to give rise to significant environmental effects. Dclg hopes this will reduce the number of screening decisions for residential development from around 1,600 a year to 300.

Ideally, it would like a threshold closer to the 1,000 dwellings (about 30 hectares) indicative threshold, but is unsure that this would be consistent with the requirements of the EIA Directive.

Dclg did consider raising thresholds for other types of annex II projects – such as quarries and wind energy projects – but concluded that the existing thresholds should be retained.

Controversial plan?

Although the proposal to raise the threshold, especially for residential development, will be popular with developers, it is undoubtedly likely to give rise to controversy in practice.

It takes little imagination to see how the residents of a rural community might regard a 150-home development as having a detrimental effect on their local environment.

Even outside a sensitive area, there could be significant effects on views, highways and local services, for example.

So, although the proposals may result in a reduction in screening and in projects being held to require an EIA, they might also lead to challenges, potentially on incompatibility with EU law.

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