EIA- Law- the basics- Lecture 4

Question 1

What are the sources of UK law?

Answer 1

• Historically via ‘Public controls’ e.g. The Alkali Act 1863 to control the caustic soda industry. The Public Health Act 1875 to regulate housing and sanitation.
• Common law: such as nuisance and negligence, where private redress could be sought for environmental harm.
• Centralized laws emerged in the mid 20th century e.g. Town and Country Planning act and the Wildlife and Countryside Act.

Question 2

What was the massive growth in environmental law (1970 onwards) in response to?

Answer 2

• Increasing awareness of the environment
• Greater potential for damage by pollution
• International conferences and policies and most of all…the EU.

Question 3

Briefly explain the EU directives?

Answer 3

• Must be passed by the EU parliament
• Are binding on Member States
• Must be implemented by individual Member States
• Usually come with a time limit for implementation (e.g. 3 years for the 1985 EIA Directive).

Question 4

What are the EIA Directives?

Answer 4

• EC directive 85/337 on the assessment of the effects of certain private and public projects on the environment was adopted on 27th June 1985 ( after about 15 years negotiation; and implemented in the UK on 3rd JULY 1988).
• This was then amended by Directive 97/11/EC, implemented in the UK as the Town and Country Planning (EIA) Regulations 1991, and subsequently in 2011
• And a new directive in 2014.

Question 5

What were the minor amendments of EIA amendments?

Answer 5

There have been three amendments:

• 97/11/EC brought the directive in line with the UN ECE Espoo Convention on the EIA in a Transboundary context. Also widened scope of the EIA directive by increasing the types of projects covered
• 2003/35/EC was seeking to align the provisions on public participation with the Aarhus Convention
• 2009/21/EC amended the Annexes 1 and 11 of the EIA Directive, by adding projects related to the transport, capture and storage of carbon dioxide (CO2).
• These have been consolidated as Directive 2011/92/EU

Question 6

In the UK what do the EIA Regulations form?

Answer 6

Form parts of the UK Town and County Planning System- Specifically, the ES detailing the findings of the EIA is submitted with the planning application.

Question 7

What must happen is a project is likely to have significant effects on the environment?

Answer 7

EIA
Report that identifies, describes and assesses those effects is submitted

Consultation: Members of the public and statutory consultees must be given the opportunity to comment on the ES

The EIA regulations only apply to developments likely to have significant effects in the environment

Question 8

What must be produced in the EIA?

Answer 8

• ES has to address the direct and indirect effects of the development on a series of ‘factors’ (pollution, fauna, flora, soil, air, water, climate, landscape, archaeology).
• Alternatives and mitigation measures must be considered. LPAs should enforce mitigation measures via ‘Planning conditions’.

Question 9

what was the Big Yellow property company case?

Answer 9

BYPC proposed to construct a storage and distribution facility.

• The planning authority took the view that as such development was not specifically describes in either the Directive or regulations, there was no need to consider EIA.
• This was challenged in court

Big Yellow: Following legal challenge, the Court of Appeal decided that:
- in this instance, the infrastructure goes far wider than the normal understanding, as quoted from the shorter English Dictionary of the installations and services (power stations, sewers, roads, housing etc) regarded as the economic foundations of a country.

It was decided the development was outside the reach of schedule 2.10(b) of the EIA Regulations- was outside the range of reasonableness that was open to the Planning Authority (So it should have had an EIA).

Planning permission was quashed and the application remitted to the planning authority for reconsideration

EIA was needed even though proposal was not a type listed in the legislation.

Question 10

When can planning permission be granted?

Answer 10

With full knowledge of the likely significant impacts of a development.

Sufficient information to enable the main or likely significant effects on the environment to be assess and the mitigation measures to be described.

Question 11

What was the Rochdale Envelope case?

Answer 11

• A bare plan (e.g. of a business park) is insufficient.
• Details of buildings, activities and likely environmental effects must be included
• The development is restricted to those activities assessed in the ES.
• Maximum and minimum boundaries for scale of activities should be used for assessment with frame of ‘best case’ and ‘worst case’ scenarios

Question 12

What are the roles of the planning authority?

Answer 12

• Screening (decision within 3 weeks)
• Scoping (opinion within 5 weeks, based on discussion between the applicant, the statutory consultees and the authority.
• Consultation with statutory consultees
  (the public are often also consulted by the developer as part of ‘pre-application consulation’. ‘Community consulation plan is usually agreed in advance
• Evaluation the environmental information
• Advertising
• Setting planning conditions (e.g. to enforce mitigation).
• Publicizing the application and the decision.

Question 13

What was the Aarhus Convention (1998)?

Answer 13

• Links environmental rights and human rights
• Acknowledges that we owe an obligation to future generations
• Establishes that sustainable development can be achieved only through the involvement of all stakeholders
• Links government accountability and environmental protection
• Focuses on interactions between the public and public authorities in a democratic context.

Question 14

What are the three pillars that secure citizens rights?

Answer 14

• Access to information
• Public Participate
• Access to justice

Question 15

What does the Aarhus Convention (1998) list?

Answer 15

The convention lists in an annex the types of activities for which decisions to approve projects should always be subject to public participation.

• they include any activity that might have a significant impact on the environment,
  E.g. the licensing of a nuclear power station, smelter, chemical plant, waste-treatment plant or road construction project

Question 16

How is the community consulted?

Answer 16

The Planning Act 2008 places a duty upon developers to engage meaningfully with affected communities, local authorities and other statutory consultees over their proposals at pre-application stage

• The developer must produce and publicize a Statement of Community Consultation- this should take account of the iterative process of (e.g.) design, EIA and mitigation.

Question 17

What are the community Consultation legal requirements?

Answer 17

• In preparing the Statement of Community Consultation, they must consult with and have regard to the views on any relevant local authority on the content of the statement
• The 2008 Act regime therefore seeks to ensure there are opportunities for the public, local authorities, consultees and other interested parties to get involved and have their say during the pre-application stage.

Question 18

What is considered by the planning authority?

Answer 18

Material considerations:
- Fit with national and local policies 
- Highway Issues (e.g. traffic and safety)
- Noise, loss of light, smells
- Impact on trees
- Lack of infrastructure 
but not (e.g.)
- Disputes between neighbors, loss of view, loss of property value

Question 19

What affects the decision making process?

Answer 19

• The Contents of the ES
• Views of the public (as long as material considerations)
• Submissions from statutory consultees
• Planning Policy

Question 20

What is within Planning Policy Contexts?

Answer 20

• International policies: (if relevant): specific climate change policies and agreements/ fair trade etc.
• National Policies (e.g. National Planning Framework, National policy Framework 2011, National Policy Statements- NPSs on infrastructure e.g. energy, waste, water etc…)
• Emerging policy in Governments Statements- Ministerial Statements, White Papers- such as a Handbook for strategic planning, Strategic Management for Senior Leaders: A Handbook for Implementation.
• Local spatial plans: local development frameworks & core strategies
  (Formerly development plans)

e.g. policies on land use, conservation, economy, landscape, housing etc.

Question 21

What are the requirements of Statutory Consultees?

Answer 21

• Are not required to be consulted on screening opinions
• are consulted prior to a scoping opinion
• are usually included in ongoing consultation through the process
• Must supply any relevant data or information during the EIA, but are not required to gather new data
• Must have the opportunity to comment on an ES

Question 22

Who are Statutory consultees (in england)?

Answer 22

• the principal council for the area (if not the planning authority)
• Natural England (English Nature & the
• Countryside Agency up to 2006)
• The Environment Agency
• English Heritage (if a Scheduled Monument or listed building is likely to be affected)
• Marine Management Organisation
• Plus any body required to be consulted under 2011 EIA Regs Pt 1 Section 2) (e.g. -Highways Agency if roads are included
• Harbour Authority, Crown Estate…..)

Question 23

What are the legal challenges?

Answer 23

Domestic courts: can rule on whether the Regulations have been complied with, including whether sufficient information has been provided for ‘individual citizens’ to make representations about possible effects

European Courts: can further rule on adherence to the Directives

Question 24

What are some recent UK developments?

Answer 24

• National Planning Policy Framework- defines ‘ sustainable development’ and establishes core principles.
• Consolidation of EIA Regulations as Town and Country Planning Environmental Impact Assessment Regulations in England and Scotland 2011

Question 25

What are the environmental impact assessment regulations 2011?

Answer 25

No major changes
Consolidate several EIA legislative tools (development, minerals, coastal….)
A few minor changes to note:
a duty to give reasons for negative screening decisions;

to deal with ‘salami slicing’:

(2) clarification regarding the handling of subsequent applications in relation to EIA development
changes to the screening of modifications or extensions to projects

(4) confirmation that screening directions for Sch.2 development may be requested from the Secretary of State by any person, and that such direction may include development below the Sch.2 thresholds.

They also now include sites for the geological storage of CO² and installations for the capture of CO² for the purposes of geological storage.

Question 26

What is the EU revised directive?

Answer 26

• screening of projects for EIA (in view of considerable differences among Member States),
• the quality of the EIA process (e.g. data used in the EIA, assessment of alternatives, competence of participants),
• the harmonisation of assessment requirements among Member States, including mandatory scoping and independent, publicly available monitoring
• transboundary difficulties when activities affect more than one Member State,

-development of synergies with other EU environmental legislation and policies, such as climate change, resource efficiency and biodiversity,