Changes to the EIA Regulations

Following consultation, the Government has raised the thresholds for screening of urban development projects to determine the need for Environmental Impact Assessment (EIA). The amendments to Schedule 2(10) under the English Town & Country Planning EIA Regulations came into force on 6th April 2015.

The changes are as follows:

  • The screening threshold for residential development will be increased from 0.5 hectare up to 5 hectares, including where there is up to 1 hectare of non-residential urban development.
  • Residential developments of more than 150 units will need to be screened regardless of site area;
  • The threshold for other urban development will be raised from 0.5 hectare to 1 hectare; and
  • The threshold for industrial estate development will be raised from 0.5 hectare to 5 hectares.

It should be noted that no change is proposed for sites located within sensitive areas, in which thresholds do not apply. Proposed development within National Parks, Areas of Outstanding Natural Beauty, Special Areas of Conservation, Special Protection Areas, Sites of Special Scientific Interest, World Heritage Sites and Scheduled Ancient Monuments will therefore continue to require screening regardless of site area. The Secretary of State can also issue a screening direction for any project irrespective of whether it falls above or below the indicative screening threshold.

Although the changes have been brought in by Government in order to reduce ‘unnecessary bureaucracy’, given that in some cases they represent a ten-fold increase to previous thresholds, their legality may well form the subject of future High Court challenges. As such, for complex or contentious schemes, developers may wish to consider requesting an EIA screening opinion or direction regardless of whether or not a proposed development falls outwith the newly raised thresholds. In particular, careful regard should be given to the proximity of sensitive receptors (e.g. heritage assets, wildlife sites and watercourses), to the cumulative impact of other developments in the immediate area, to visual impacts (especially for tall buildings or structures) and to impacts from traffic including air pollution and noise.

In practice, the ultimate test set out in the EU Directive is for the determining authority (usually the LPA) to decide whether a given development is likely to result in ‘significant environmental effects’ on the environment, notwithstanding the indicative EIA screening thresholds in the EIA Regulations. This judgment is clearly more difficult to make in the absence of any formal EIA screening or assessment process. For example, the presence of protected species which could be harmed by the proposed development (and which could in turn constitute a ‘significant environmental effect’) might only be revealed when an appropriate survey is completed and submitted either before or after the planning application. This may leave the developer/ architect no time to design-out such effects or to propose effective mitigation in consultation with the relevant authorities. It also runs the risks of the LPA retrospectively requiring an EIA to be completed or that a third party takes up the case and asks for a screening direction for the Secretary of State. In our view, such circumstances appear increasing likely under the current changes to the EIA Regulations. The consequence could be greater delays, costs and complexity than had a well-reasoned EIA screening opinion been requested and obtained from the LPA in the first place, and/or a scoped-down EIA and concise Environmental Statement (ES) been volunteered. Moreover, an ES can often act as a safeguard to ensure that the conclusion of individual technical reports which might otherwise be required to support a planning application (e.g. flood risk assessments, noise and air quality assessments etc.) are presented in a balanced and consistent way and are not quoted out of context or misunderstood by Planning Officers, members of the public and third party objectors.

RPS and CgMS have extensive experience in EIA and guiding projects through the screening and scoping process; therefore, we are well placed to assist clients grapple with the tactical advantages and disadvantages of screening projects, and how these legislative changes may affect your projects.

Contacts:

David Thomson, EIA Director – Tel. (0)207 280 3250; email thomsond@rpsgroup.com

Olivia Finch, Associate – Tel. (0)207 280 3282; email olivia.finch@rpsgroup.com

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