EIA changes are welcome … in part

Some of the changes to the EIA regime, which look likely to come into effect in the UK in 2016, are welcome.  Several will help streamline a process that is sometimes so obscured by extraneous information that it offers little practical support for decision making. There is still a need for the Government to follow up on its commitment in the 2012 and 2013 Autumn Statements to reforms, though, to ensure EIA is fit for purpose.

  • signScreening: The revised Directive will require a Screening Report to be prepared and may lead to the screening period in the UK being doubled (to 12 weeks).  The extended timeframe is unwelcome, but the requirement for clear screening information reflects what should already be good practice in seeking reduce paperwork by narrowing the issues for EIA or avoiding it altogether.  The revised Directive notes that whilst formal consultation is not required for screening, it is good practice for authorities to take unsolicited comments into account.
  • Scoping: It is common to assess impacts across a large number of disciplines, only to conclude that no significant effects are likely for most of them.  That is wasteful, unnecessary and often gets in the way of good planning. It very often suggests that a lazy or incorrect approach to screening has been adopted. As the Planning Practice Guidance now recognises, single or limited issue Environmental Reports should be much more common, justified by robust screening information. The UK courts are clear that where robust screening information is provided, they will be very reluctant to trespass on planning judgments about the likelihood of significant effects.  Careful screening reports are usually significantly cheaper and quicker than a bloated ES.
  • Drop kick: some of the requirements have been dropped out following pressure from member states (particularly the UK). Mandatory scoping and a wide ranging assessment of all reasonable alternatives have been dropped. Shale development has also escaped the proposed mandatory assessment, albeit that robust screening will be still required.
  • Alternatives: The treatment of alternatives is often muddled – with inaccurate information being volunteered in ES work about the alternatives that have in fact been considered. As a result of pressure from the UK Government the duty will remain, as it currently stands in English law, simply to assess those alternatives that were actually considered by the developer. The ‘do nothing’ scenario should very rarely feature in ES work. Where alternatives were considered, more detailed analysis will now be required of their relative effects.  Given the iterative design process for large schemes, this will present some challenges for assessors.
  • More clarity needed: the Government has been pushing since late 2012 to set thresholds for avoiding screening altogether (and confirmed its continued intention to do so in January). The revised Directive will now enable it to do exactly that, albeit not at the scale the Government appears to wish.
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Roy Pinnock

About Roy Pinnock

Roy is a partner in the Planning and Public Law team, bringing his experience of working on regeneration projects within local government and as a consultant to his legal practice.

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