Update
September 2008
The Pinsent Masons Planning Toolkit Series
Part 3B - How to avoid EIA pitfalls
Environmental Impact Assessments
An Introduction
3 July 2008 represented the 20th anniversary of the creation of Environmental Impact Assessments ("EIA"), since
it was by that date in 1998 that all EU Member States were to have transposed into their respective domestic
laws legislation requiring the assessment of the effects of certain public and private projects on the environment.
Despite this long presence in our legislation, EIA is still as problematic as ever to implement correctly, as
witnessed by the numerous proceedings brought by the European Commission and by the voluminous case law in
our national courts.
The purpose of EIA is not to prevent actions with significant environmental impacts from being implemented,
rather the intention is that actions are authorised in the full knowledge of their environmental consequences. EIA
is a process for identifying the environmental effects, both positive and negative, of proposed development before
planning permission is granted and must, therefore, be undertaken prior to submission of a planning application.
The results of the EIA process are then detailed in a single document, called an Environmental Statement ("ES"),
and submitted to the local planning authority with the planning application.
Not all development requiring planning permission will need to undergo an EIA. This toolkit is designed to assist
both developers and local planning authorities in establishing when an EIA is required and highlights some of the
key requirements to ensure that an EIA is valid. Whilst this toolkit is referenced to projects that fall under the
Town and County Planning consenting system, the principles equally apply to the raft of EIA regulations that exist
for those projects subject to planning permission outside that system – electricity, nuclear decommissioning,
pipe-lines, water, harbour works, highways, fish farming, forestry, and land drainage all have their own specific EIA
regulations.
Key legislation and guidance
1. Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (as
amended in 2000 and 2008)
2. DETR Circular 02/99*
3. Environmental Impact Assessment: A guide to procedures (ODPM, 2000)*
* To be revised in November 2008.
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Establishing whether an EIA is required
Stage 1
An EIA is required for all proposed development that is classed as "EIA Development," which involves looking at
the types of development listed in Schedule 1 and Schedule 2 of the Town and Country Planning (Environmental
Impact Assessment) (England and Wales) Regulations 1999 (the "Regulations"). If the proposed development is
listed in Schedule 1 of the Regulations, then the development is "EIA Development" and an EIA is mandatory.
Such development includes crude oil refineries, nuclear power stations, iron and steel works, certain waste
disposal installations, and certain transport projects (the construction of railway lines, airports, motorways and
waterways). If the proposed development falls outside the Schedule 1 list, then the next step is to assess
Schedule 2 of the Regulations.
Listed as Schedule 1 ?
EIA Required
Yes
No
Listed as Schedule 2 ?
Yes
Go to STAGE 2
No
EIA Not
Required
In determining whether the proposed development is of a type listed in Schedule 1 or Schedule 2 of the
Regulations, the lists should be interpreted widely. The fact that a particular type of development is not
specifically identified in one of the Schedules does not necessarily mean that it falls outside the scope of the
Regulations. For example, the descriptions of development that are given by Schedule 2 as falling within the
heading "Urban development project" emphasise the wide ambit covered by this heading and can apply to
projects that might not ordinarily be regarded as urban in nature. Indeed, the term "urban" does not mean that it
only applies to a development to be sited in an already urban area, but it could apply to development proposed
for out of town and even rural areas which might have an urbanising effect.”
Should the proposed development also fall outside the Schedule 2 list, then an EIA will not be required. However,
should the Schedule 2 list encompass the proposed development, then it will only be a Schedule 2 development if
it meets certain threshold or siting criteria. It is at this point that the developer or local planning authority must
move onto "Stage 2" of identifying "EIA Development".
Stage 2
If the proposed development has been identified as falling within one of the development descriptions listed in
Schedule 2 to the Regulations, the next step in identifying whether that development is Schedule 2 development,
and then ultimately "EIA Development", is to ascertain whether it:-
• is located wholly or in part in a 'sensitive area’ (e.g. a Special Area of Conservation, a Special Protection Area, a
Site of Special Scientific Interest, a National Park, a World Heritage Site, a Scheduled Ancient Monument, an
Area of Outstanding Natural Beauty); or
• meets one of the relevant criteria or exceeds one of the relevant thresholds listed in the second column of
Schedule 2 (e.g. the floorspace of the proposed development must exceed 1,000 m², or the area of proposed
development must exceed 0.5 hectares, or the proposed development must be sited within 100 metres of
controlled waters).
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The proposed development will only be schedule 2 development if it:-
• is in or partly in a "sensitive area," even though it does not meet the criteria or exceed the stated thresholds;
or
• meets the criteria or exceeds the stated thresholds, even though it is not located in or partly in a "sensitive
area".
The Court of Appeal has ruled on whether the floorspace threshold should be given a narrow or wide
interpretation concluding that the meaning of "floorspace" is wide enough to be a marker of scale in any structure
of erection or part thereof. As with the descriptions of development in Schedules 1 and 2 to the Regulations, the
term "floorspace" in Schedule 2 should, therefore, be interpreted widely when assessing whether or not the
proposed development exceeds the Schedule 2 thresholds.
Whilst a proposed development may be classed as a Schedule 2 development, this classification does not mean
that it is "EIA Development" requiring an EIA. Indeed, a Schedule 2 development will only require an EIA if it is
likely to have significant effects on the environment, a process that in this toolkit we have called "Stage 3" of
identifying "EIA Development."
Is the listed development in or partly
in a "sensitive area"?
Yes
No
Does the listed development meet
any of the relevant criteria or exceed
the thresholds in Schedule 2?
Yes
Development is
"Schedule 2
Development"
No
EIA Not
Required
Go to STAGE 3
Stage 3
In assessing whether a Schedule 2 development is likely to have significant effects on the environment,
consideration must be had to the selection criteria in Schedule 3 to the Regulations which requires an assessment
based on the development's:-
• characteristics, such as the development's size, its cumulation with other development, its use of natural
resources, the amount of waste it is likely to produce, and the likelihood of pollution, nuisance and risk of
accident;
• location, taking into account factors such as the existing use of the land and the surrounding area; and
• potential impact, such as the geographical extent of the impact, the magnitude and complexity of the
impact, the probability of the impact and the duration, frequency and reversibility of the impact.
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It must be remembered that the basic test that must be applied to a Schedule 2 development in determining the
need for an EIA is the likelihood of significant effects on the environment, a test which is one of degree and which
calls for the exercise of judgement. If the assessment concludes in the affirmative, then the Schedule 2
development is "EIA Development" and an EIA must accompany the planning application.
Is the Schedule 2 Development likely
to have significant effects on the
environment
EIA Required
No
Yes
Record opinion
with reasons
EIA Not
Required
Record opinion
with reasons
Screening Opinions
As can be seen from the three stages summarised above, identifying whether a proposed development constitutes
"EIA Development" is one of judgement which must be exercised on a case by case basis. Accordingly, before
submitting a planning application, developers who are in doubt whether an EIA would be required, may request a
screening opinion from the local planning authority pursuant to the Regulations. Any such request should be
accompanied by:-
• a plan to identify the proposed location of the development;
• a brief description of the nature and purpose of the proposed development and its possible effects on the
environment; and
• such other information or representations as the developer may wish to include.
The local planning authority then has three weeks to adopt a screening opinion, unless a longer period is agreed
with the developer. In reaching an opinion, the local planning authority will have to go through the 3 stages as
identified in this toolkit. In reaching its opinion, it is valid for the local planning authority to have regard to
remedial measures which are either part of the proposed development itself (such as a roundabout) or which will
be secured by planning condition attached to any planning permission granted or a planning obligation within a
section 106 agreement.
Once the local planning authority has reached its opinion, the opinion must be made in writing, issued to the
developer and placed on the public register. The reasons for a "positive" opinion must always be given, but there
is no similar requirement in the Regulations to provide reasons with a "negative" screening opinion. However,
judgments in European case law would indicate that reasons should be provided for "negative" screening opinions.
We will, hopefully, shortly have definitive guidance on this point from the English Courts, as on 21 January 2008
the Court of Appeal referred the case of R (on the application of Mellor) v Secretary of State for Communities
and Local Government to the European Court of Justice. In the meantime, it would be good practice for planning
authorities to give reasons for "negative" screening opinions.
Where the local planning authority fails to adopt a screening opinion within the time frame, or holds that the
proposed development will require an EIA, the developer may "appeal" by requesting a screening direction from
the Secretary of State.
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The Environmental Statement
Scoping Opinions
Scoping is the process of determining the content and extent of matters to be covered by the EIA and in the
resulting ES. It is recommended that where it is concluded that an EIA is required, that developers and their
advisers submit a request to the local planning authority for its views on the information to be included in the ES
(a scoping opinion) as this ensures a paper trial recording the requirements of the determining authority, and
statutory consultees, which can be used in the ES itself to confirm that the ES has covered all required assessment
topics.
For the process to work effectively, it is recommended that the developer submits to the local planning authority
a scoping report, the contents of which would cover:-
• a description of the proposed development;
• a summary of the conditions currently present on the site;
• an outline of the methodology and terms of reference for the ES; and
• a topic by topic assessment of the key impacts of the proposed development.
The scoping report can be used to exclude or "scope out" those topics where significant effects are unlikely;
however this should be balanced with the reaction of the local population. For example, whilst a scoping report
may conclude that a proposed development may not give rise to a significant impact on the local highway
network, transport is often of local interest and if the ES fails to consider the topic then the ES could come under
criticism.
A scoping request may be made at the same as the pre-application screening opinion stage or alternatively it
could be made after work on the ES has actually begun. The latter approach has the added benefit of submitting
a detailed scoping report which assesses the current site conditions against the potential development impacts,
which could reduce the number of topics and areas on which the local planning authority requires a full EIA.
The local planning authority must adopt a scoping opinion within five weeks of receiving a request (or, where
relevant, of adopting a screening opinion). This period may be extended if the authority and developer agree in
writing. The developer should take into account the scoping opinion when carrying out the EIA and compiling the
ES, and whilst the developer is ultimately responsible for the content of the ES, if any topics required by the
opinion are not covered then the ES should give a justified reason for the omission.
There is no provision for an appeal to the Secretary of State if the developer and the local planning authority
disagree about the content of the ES. However, where the authority fails to issue an opinion with the five week
period, the developer can seek a scoping direction from the Secretary of State.
Preparation of the Environmental Statement
It is the applicant's responsibility to prepare the ES. There is no statutory provision as to the form of an ES,
although it must constitute a "single and accessible compilation." The usual approach is for the ES to be one
document made up of different volumes.
The information required to be included in an ES is set out in Schedule 4 to the Regulations 1999. At the very
least, an environmental statement must include:-
• A description of the proposed development comprising information on the site, design and size of the
development;
• A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse
effects (mitigation measures);
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• The data required to identify and assess the main effects which the proposed development is likely to have on
the environment; and
• A non-technical summary of the information above.
The Regulations also provide that an ES must include such further information that is reasonably required to
assess the environmental effects of the proposed development and which the developer can reasonably be
required to compile. Such information may include:-
• A full description of the proposed development's physical characteristics and the land use requirements during
construction and operational phases;
• A description of the main characteristics of the production processes;
• An estimate of expected residues and emissions (water, air and soil pollution, noise, vibration, light, heat etc)
from the operation of the proposed development;
• A description of the aspects of the environment likely to be significantly affected by the proposed
development (including population, fauna, flora, soil, water, air, climatic factors, heritage, landscape) together
with their inter-relationship; and
• A description of the likely significant effects of the proposed development (direct, indirect, and cumulative) on
the environment;
The ES does not have to contain every scrap of environmental information. The Courts have recognised that if the
ES did contain everything it would be voluminous and there would be a real danger of the local planning authority
"losing the wood for the trees." The ES need only cover the "main effects" or "likely significant effects."
It should be noted that whilst Schedule 4 to the Regulations requires the developer to include in the ES an outline
of the main alternative approaches to the development, the Regulations do not expressly require the developer to
study alternatives. However, the nature of certain developments and their location may make the consideration
of alternative sites a material consideration and in such cases the ES must record this consideration of alternative
sites. In addition, this consideration of alternative sites and choice of process will result in a more robust planning
application.
Adequacy of the Environmental Statement
In assessing the likely significant environmental effects, the local planning authority must have sufficient details
of the nature of the proposed development, of its impact on the environment and of any mitigating measures.
The authority need not have all available material, provided it is satisfied that it has sufficient material to enable a
clear decision on the planning application to be reached.
If the local planning authority is of the opinion that it does not have sufficient information, then it may pursue
one of two options:-
• if the information is environmental in nature and so essential that the ES would be defective without it, the
authority can make a request under Regulation 19 of the Regulations for "further information". For the
developer, such a request could mean further survey work, and therefore an increase in costs, and time delay
whilst the relevant information is compiled and then subsequently consulted upon after receipt by the
authority.
• if the information can be classed as "clarification" then the authority could make an informal request. As this
information would not be governed by the Regulations, it would be at the authority's discretion whether or
not to re-consult.
It is worth noting that a condition requiring further survey is not ultra vires, provided that the local planning
authority is satisfied that, on the balance of probabilities, it is in possession of the likely significant environmental
effects of the proposed development. If it is satisfied on this count, but knows that there are some other
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environmental effects on which it would like more detail, there is nothing preventing the authority from granting
planning permission subject to a condition requiring those additional surveys (R (on the application of Blyth
Valley Borough Council) v First Secretary of State and others [2006] EWHC 3619).
Outline Planning Applications
It used to be settled law that in the case of outline applications followed by reserved matters approvals, an EIA
could only be required at the outline stage. The situation has changed since the decision of the House of Lords in
R (on the application of Barker) v London Borough of Bromley [2006] UKHL 52, which followed a referral to the
European Court of Justice. The House of Lords held that the (then 1988) Regulations which transposed the
requirements as to EIA into English law, wrongly did not provide for EIA at the reserved matters stage.
The consequence of this ruling is that developers, particularly of major and complex schemes, should remain
aware of the need to consider whether a further EIA is needed at the reserved matters stage and to make the
necessary screening application to the local planning authority. However, it should be noted that whilst the House
of Lords ruled that the opportunity to consider EIA should be available at the various approval stages, the House
made the following points:-
• sufficient information must still be provided at the outline application stage to enable the local planning
authority to answer the question whether an EIA is required; and
• if sufficient information is given at the outset, then it ought to be possible to determine whether the EIA
which is carried out takes into account all of the potential environmental effects likely to follow as the
reserved matters come forward. Appropriate planning conditions to ensure that the proposed development
remains within the parameters assessed by the EIA will normally enable the local planning authority to treat
the EIA carried out at the outline stage as sufficient.
Handy Tips on ES writing
1. Do spend time devising a clear content structure. A typical structure would include:1.1 Introduction;
1.2 Description of Development;
1.3 Assessment Methodology;
1.4 Need and Alternatives;
1.5 Planning Context;
1.6 Individual assessment topic chapter
1.6.1
Baseline conditions
1.6.2
Assessment – construction
1.6.3
Assessment – operational
1.6.4
Mitigation – construction
1.6.5
Mitigation – operational
1.6.6
Residual Impacts
1.6.7
Conclusion
1.7 Cumulative Impacts
1.8 Summary of Residual Impacts
2. Do prepare a stand alone Non-Technical Summary. Volume 1 of the ES should be the NTS, with the main
text in Volume 2, and the Figures / Appendices in Volume 3.
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3. Do set out the assessment years at the beginning of the ES, so the reader understands clearly from the
start what the ES is assessing. For example, when will construction take place and when will operations
commence? If there is to be a phased construction programme or commencement of operations these
need to be factored into the assessment years.
4. Do use the scoping opinion as a means of cross checking that all relevant information is within the ES. A
matrix at the beginning of the ES informing the authority where it can find the topics identified in the opinion (or explaining why the topic is not covered) is often considered useful.
5. Do provide a clear summary of the assumptions made and the mitigation measures that require securing if
planning permission is granted.
Proposed amendments to the Regulations
Due to the House of Lords ruling, the Regulations must be amended to allow for an EIA at the reserved matters
stage and accordingly the Town and Country Planning (Environmental Impact Assessment) (England)
(Amendment) Regulations 2008 came into force on 1 September 2008. The amendment regulations require an
EIA at the reserved matters stage in the following circumstances:-
• where an EIA should have been required at the outline stage but the planning authority failed to issue a
screening opinion. In this instance, the local planning authority should issue a screening opinion
requiring an EIA;
• where a "negative" screening opinion was issued at outline stage, but the local planning authority on
reconsideration considers that there are likely significant environmental effects. In this instance, the local
planning authority should issue a screening opinion requiring an EIA;
• where an EIA was required at the outline stage and an ES produced, but the local planning authority considers
that the ES requires revising or updating before it can be regarded as an ES (due to the reserved matters
application revealing new or additional likely significant environmental effects not previously addressed, or
where the surrounding landscape has changed and this needs assessing). In this instance, the local planning
authority should issue a Regulation 19 request asking for further information to the already submitted
ES.
The amendment regulations do not only have implications for outline planning permissions, but also for full
planning permissions which contain "Grampian style" conditions (i.e. development is not to commence until
something has been approved by the local planning authority). It follows that if the intention behind the
European Directive is for all parts of the development consent process to potentially trigger the need for an EIA,
then as a pre-commencement condition prevents a development from proceeding until something is approved, so
such a condition should be treated in the same manner as reserved matters. Therefore, the amendment
regulations define "multi-stage consent" as "any consent by a local planning authority or the Secretary of State
which (a) has a condition imposed on a grant of outline planning permission or planning permission requiring
further approval of matters; and (b) that approval must be sought and granted before all or part of the
development concerned may be carried out."
However, there is some good news! The Department for Communities and Local Government consider that the
likelihood of the need for a further EIA at the reserved matters stage is unlikely provided that the approach
outlined by the House of Lords in the Barker case is followed. Equally, the European Court of Justice has ruled
that a "second stage EIA," whilst being comprehensive in nature, need only relate to the aspects of the project
that have yet to be assessed or which require fresh assessment (hence, if an ES was submitted with the outline
application or full application, then a supplementary document need only be submitted to "update" that ES with
the further information required).
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And finally…
Phased Schemes
If a scheme is to be built in phases, then there is a possibility that planning applications may be submitted
separately. However, when it comes to the question of whether an EIA is required, the local planning authority
may have to look at the project as a whole.
This does not mean that all applications that form part of a wider scheme have to be considered together and
under one masterplan. The test is whether the proposed development in front of the local planning authority
could proceed independently, without the implementation of the other phases. If it can, and the proposed
development falls beneath the threshold for an EIA, then no EIA will be required for that proposed development.
Alternatively, if the proposed development requires an EIA on its own merits, then there is no requirement for that
EIA to consider the cumulative impact of later development on the site, when there is no application put forward
(Littlewood v Bassetlaw DC 23/6/2008).
Extensions or changes to an approved EIA development
If an EIA development has already been authorised, but a change or an extension is proposed which may have
significant adverse effects on the environment (note the change in the test), then a further EIA may be required:-
• If the extension or change itself constitutes a Schedule 1 development then an EIA will automatically be
required.
• If the extension or change counts as a Schedule 2 development, and a Schedule 2 threshold is crossed, then
the local planning authority will have to look at the whole of the existing and amended development in order
to decide whether an EIA is required, not just the amendments in isolation.
Checklist
1. Take advantage of requesting a scoping opinion from the local planning authority and plan your programme
accordingly.
2. Ensure that the project description is clear and that those who carry out the EIA are fully aware of the
description of development (i.e. the development that is to be assessed) as well as the proposed red line.
3. Consider third party consultation during the design stage of the project. Not only will this mean that any
objections can be countered at an early stage, but it may also mean that valuable advice can be gathered
regarding potential environmental impacts and any suitable mitigation measures.
4. Remember that although the ES is to identify the likely significant environmental impacts, mitigation
measures should mitigate any adverse environmental impacts.
5. Remember that carrying out an EIA and drafting the ES can add a significant amount of time to the
planning process. If a protected species is breeding in the area, it may only be possible to survey the land
at certain times of the year.
© Pinsent Masons LLP 2009
This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.
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