Brexit means business as usual for EIA regulations

For public lawyers, December’s preoccupation was undoubtedly the article 50 Brexit hearing in the Supreme Court. Those of us who were glued to the live stream of the hearing or hooked on the associated legal commentary might be forgiven for having overlooked another of the government’s EU-related activities last month, namely the publication of a consultation on the new Environmental Impact Assessment Regulations.

On 14 December 2016, the Department for Communities and Local Government published its consultation (due to run until 1 February 2017) on the amendment of the town and country planning and infrastructure regulations to implement the 2014 EIA Directive. The EU adopted the amended EIA Directive back in the pre-Brexit world of May 2014 and member states were given three years to implement the changes, with the deadline set at 16 May 2017.

Regardless of the outcome of the Brexit hearing and the means by which article 50 is triggered, we will remain members of the EU on 16 May 2017 and the government is therefore obliged to implement the directive. This is acknowledged by the consultation, which indicates that ‘until exit negotiations are concluded… the government will continue to negotiate, implement, and apply EU legislation’. Theresa May tells us that ‘Brexit means Brexit’, but in the context of the new EIA Directive, Brexit, for now at least, means business as usual.

One of the key changes made to the EIA regime relates to the content of the environmental statement. The new directive retains the voluntary nature of scoping opinions. However, in circumstances in which such an opinion has been requested, the environmental statement must now be ‘based on the most recent scoping opinion or direction issued (so far as the proposed development remains materially the same as the proposed development which was subject to that opinion or direction)’.

One obvious issue with this change relates to the position in which an authority and developer disagree about the proper scope of the environmental statement, as is often the case in relation to, for example, cumulative effects. The impact of this change is that if a scoping opinion is requested, the developer will find itself shackled to the authority’s scoping opinion. Given the voluntary nature of scoping requests, this may have the unintended consequence of discouraging such requests from developers.

A further change in respect of the environmental statement is the introduction of a requirement that the statement be prepared by persons who ‘in the opinion of the competent authority have sufficient expertise to ensure the completeness and quality of the environmental statement’. This reflects the inclusion in the directive of a requirement that the environmental statement be prepared by ‘competent experts’. The DCLG has not sought to further define this term. By leaving the definition of competence to the opinion of individual authorities, it is conceivable that there will be material divergences in how expertise is defined and assessed.

The screening process does not escape the changes. Although case law has already established that mitigation measures can be taken into consideration by the decision maker in reaching EIA screening decisions (see R (Champion) v North Norfolk District Council [2015] UKSC 52), the regulations confirm that a developer may provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment. The government indicates that it anticipates that this change will encourage more developers to seek to ‘screen out’ development at the screening stage through early consideration of mitigation or avoidance measures.

Another notable amendment relates to monitoring requirements. The regulations indicate that competent authorities should, where appropriate, include proportionate measures for monitoring the significant adverse environmental effects in the development control decision. The government’s view is that this can be achieved through existing means, such as conditions and planning obligations. In positive terms, a monitoring requirement could lead to a more sophisticated understanding of the longer-term environmental outcomes of a project. It is presently unclear what practical consequences might flow from such monitoring.

A final point to note is that the consultation timeframes for the environmental statement are to change from the current 28 and 21-day periods for infrastructure and town and country planning respectively to a minimum 30-day period. The new regulations are expected to come into force on 17 May 2017, subject to any amendments arising from the consultation. The transitional arrangements mean that the existing regulations will apply to projects for which the statement is submitted or a screening or scoping opinion is sought by 16 May 2017.

Melissa Murphy is a barrister at Francis Taylor Building

@FTB_law www.ftbchambers.co.uk