ENVIRONMENTAL IMPACT ASSESSMENT – PROPORTIONALITY IN THE AGE OF THE NATIONAL PLANNING POLICY FRAMEWORK
Several of us attended the MIPIM property conference in France in March of this year. Speaking to developers and funders, a major concern is EIA. Developers are sometimes told by their advisors or the planning authority in pre-application meetings that EIA is required.
I am writing this in response to clarify and hopefully reassure those involved in strategic planning the background to EIA, especially now, subsequent to the National Planning Policy Framework (NPPF).
EIA legislation pre-dates the NPPF; there are a number of UK regulations that give effect to the EU Directive on EIA, but the key one is 2011 EIA Regulations. This requires an EIA in a very limited number of cases (nuclear power stations, anyone?) Most development proposals fall into the two optional schedules: for example, housing development greater than 0.5ha is Schedule 2, meaning that it may require EIA.
The threshold for EIA is actually fairly high. The UK guidance provides a helpful flow chart which I would recommend any developer to read and understand. And if a development is designed with potential environmental impacts considered and mitigated, EIA becomes even less likely.
Most EIA regulations and guidance pre-dated the NPPF, and not all local authorities take into account the main principles of this framework: that is, a presumption in favour or sustainable development, and the concept of proportionality. Proportionality is essential in screening a project for EIA, (and my view is that EIA guidance on screening is congruent with proportionality.) Paragraph 193 of the NPPF states that the requirements of an LPA should be “proportionate to the development under consideration” and should ensure that all requirements are “relevant, necessary & material.”
If the scale or the siting of a proposal is such that EIA would be required, then the scope should consider proportionality as well. Many technical professionals follow guidance on the production of EIA for their respective fields. Our practice is very familiar with, for example, guidance produced by the Landscape Institute and the Institute of Ecology and Environmental Management.
It needs to be borne in mind however, that such guidance is not site specific and is all- encompassing. For every project for which EIA is required, the scope of that assessment needs to be proportional. For example, a large greenfield site would support a range of species; but typically, only a small number of these would be affected by the development proposals. The focus of any EIA should quite properly be on those elements likely to be significantly affected.
Why is this important, and why not just cover all contingencies, “just in case”? EIA is costly. Field work, site surveys and data analysis must be undertaken. There is a stipulated procedure for publication and consultation. Technical appendices have to be written and a summary Environmental Statement must be produced. The whole process must be project managed and quality-controlled.
EIA slows the planning process substantially. Once submitted and registered with the local authority, they are given twice as long to consider the application. Registration of the application could be delayed while the local authority considers the compliance of the EIA.
For smaller projects and lower value development, the cost of EIA could affect the viability of a scheme.
If a local authority insists on one, it is possible (and often quite successful) to appeal that requirement to the DCLG. This is called “requesting a screening opinion”. Scoping can also be appealed, although I find it is less of an issue. For all these reasons, I would urge developers to carefully scrutinise and challenge any request for an EIA
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