Consultation on Replacement EIA Regulations 2010

Replacement Environmental Impact Assessment (EIA) regulations have been released for consultation which propose rationalising current EIA legislation and responds to various recent legal cases which suggested a need to update certain provisions. The draft also includes changes to rectify earlier drafting errors and other "miscellaneous" changes.

The changes include a requirement to screen the need for EIA more comprehensively when an extension to an EIA development is proposed. The environmental effects of the entire development (as opposed to just the extension in its own right) need to be taken into account. Whilst this case law is well known amongst EIA practitioners, this proposed change would formalise the potential increase in the need for EIA to be undertaken for extension projects. This has the potential to require additional expenditure on EIA from the development industry, although in practical terms, this regime change should have been operating for many months.

It also requires Planning Authorities to keep records of why EIA is not required for certain projects, following a screening request. This should not impact on the development industry, although it would be wise to ensure that Local Authorities are acting on this requirement.

Other changes of note include:

A tightening of the screening threshold for wind farm developments, which proposes a lowering of the height threshold from 15m to hub, to 18m including rotor length. This will be of interest to those active in the wind energy sector and suggests a future need for more screening requests to be made.

Also, the draft Regulations propose the inclusion of new screening thresholds for projects to accommodate the geological storage of CO2 captured from power and industrial plants. This reflects the requirements of a recent EU Directive, as well as the UK's move towards Carbon Capture & Storage (CCS) projects.

Finally, a drafting error has been corrected relating to Environmental Statements (ES) for multi-stage development projects. This removes the need to re-consult on an earlier ES, in cases where Reserved Matters applications are submitted, but when the original ES provided with an Outline application is perfectly adequate and up to date. This anomaly resulted from the convoluted nature of the earlier Amendment Regulations covering multi-stage development consents (principally Outline and later Reserved Matters applications). The offending cross references are proposed to be removed and clarified.

The EIA Circular will be cancelled and replaced with new web based procedural guidance in the New Year.

Comment

The CLG press release accompanying this draft set of regulations makes much of the simplification of the regime and the benefits to industry. However, on closer reading, it would appear that the practical effects are likely to be broadly neutral for developers and landowners.

Competent practitioners were already aware of the implications of the recent case law, and it seems that few have actually acted on the re-consultation requirements when ES 's prepared for outline schemes have been considered to be adequate. EIA practitioners will also welcome both the consolidated statute and the long awaited refresh of procedural guidance on EIA , which is programmed for the New Year.

Unfortunately, the announced simplification of the EIA process is largely confined to the statute book and a convoluted drafting error. The system itself is unlikely to significantly change in the foreseeable future, notably because of the primacy afforded to the EU Directive on EIA . In reality, and despite the tone of the CLG press release, there is no radical reform or a simplification of the EIA process in its own right.

Whilst benefits will arise for those involved in EIA preparation day to day, the tangible and practical benefits of these changes for a struggling development industry, seem very limited indeed.