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Environmental Impact Assessment: legal framework

Environmental Impact Assessment: legal framework. EIA – legal framework. 85/337/EEC – Directive on the assessment of the affects of certain public and private projects on the environment - effective from July 1988

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Environmental Impact Assessment: legal framework

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  1. Environmental Impact Assessment: legal framework

  2. EIA – legal framework 85/337/EEC – Directive on the assessment of the affects of certain public and private projects on the environment - effective from July 1988 purpose = to ensure that a development’s likely effects on the environment are taken into consideration before the developmentis authorised to proceed

  3. Whereasdevelopment consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; - 85/337/EEC preamble Whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question; - 85/337/EEC preamble

  4. transposed into UK legislation by the Town and Country Planning (Assessment of Environmental Impacts) Regulations -SI 1988/1199;amended by SI 1990/367; SI 1992/1494; SI 1994/677 NB under planning / development control legislation environmental impact has always been available as a ‘material consideration’

  5. transposed into UK legislation by the....continued • Environmental Assessment (Afforestation) Regs - SI 1988/1207 (amended 2006) • Land Drainage Improvement Works (Assessment of Environmental Effects) Regs -SI 1988/1217; SI 1995/2195 • Environmental Assessment (Salmon Farming in Marine Waters) Regs -SI 1988/1218 • Harbour Works (Assessment of Environmental Effects) Regs-SI 1988/1336; SI 1989/424; SI 1992/1421 • Highways (Assessment of Environmental Effects) Regs-SI 1988/1241; SI 1994/1002 • Electricity & Pipeline Works (Assessment of Environmental Effects) Regs -SI 1990/442; SI 1996/442

  6. 97/11/EC – Directive amending Directive 1985/337/EEC on the assessment of the effects of certain public and private projects on the environment - effective from March 1999 purpose = to clarify, supplement and improve the rules on the assessment procedure, in order to ensure that the Directive is applied, in an increasingly harmonized, accountable & efficient manner, to an increased range of developments (transfer of some Annex II development categories to Annex I)

  7. transposed into the UK legislation by the Town and Country Planning (Environmental Impact Assessment) (England & Wales) Regulations 1999 SI 1999/293[NB previous SI 1988/1199 Regulations revoked] [NB Updated in 2007 following decisions of ECJ]

  8. The current legal obligations are: • it is mandatory to carry out an EIA for certain prescribed types of development (Art.4(1) Annex I) • it is mandatory to carry out an assessment of the need for an EIA for other types of development (Art.4(2) Annex II) and to carry out an EIA where certain prescribed circumstances exist (ie likelihood of ‘significant’ environmental impact)

  9. Annex I – e.g. * power station * steel plant * chemical plant * incinerator * motorway * groundwater abstraction * large airport * wastewater treatment works NB many of these process also require IPPC authorisationwhich includes a similar EIA process Annex II - e.g. * fish farm * land reclamation * quarry * wind farm * shopping centre * cement plant * small airfield * coastal protection works

  10. key factors in considering likelihood of ‘significant’ environmental impact • size of development • sensitivity of area • possibility of long term/ irreversible harm

  11. Exclusions to EIA obligations • national defence projects • exceptional specific projects as determined by the Secretary of State

  12. The most obvious manifestationof the process is the‘Environmental Statement’ which the developeris required to produce NB: (a) minimum requirements for a ES are specified; (b) failure to submit satisfactory ES  application rejected; (c) under Env. Info. Regs SI 1998/1447 relevant info must be provided

  13. ES submission process in England & Wales • developer identifies need for, and submits, an ES with planning application • developer asks LPA for a ‘screening opinion’ as to whether an EIA is required; (& sometimes for a ‘scoping opinion’ as to what the ES should include) • developer asked to submit an ES by LPA following receipt of a planning application • developer asked to submit an ES by Secretary of State in the event of an appeal

  14. NB - EIA legislation is all about obligations to carry out an EIA for a proposed development – evidence from the EIA of adverse environmental impact(s) does not necessarily mean that the development will not be allowed to go ahead; mitigation measures can be included in the conditions attached to a grant of planning permission ALSO - operations willoften require some form(s) of separate pollution control authorisation(s)

  15. clarification in the courts where a small project is part of a wider development, which as a whole may have an significant impact, then EIA is required 1991 R v Swale Borough Council ex.parte RSPBre R.Medway, planning permission for development on R. Medway mudflats (Lappel Bank) 1994 Bund Naturschutz in Bayern v Fresitaat Bayern C-396/92 1995 Commission v Germany C-431//92re new block at existing power station

  16. clarification in the courts The EIA requirements do not apply retrospectively e.g. wrt M3 motorway through Twyford Down - development procedures had started before July 1988 e.g wrt THermal Oxide Reprocessing Plant [THORP] at Sellafield – granted permission by Special Development Order in 1978 [challenge by Greenpeace in 1994] BUT would apply in cases where new development on existing site or where renewal of existing permission is required1997 C-72/895 Dutch Dykes case; 1999 R v North Yorks CC, ex parte Brown [Wensley Quarry in Yorkshire Dales NP]; 2003 R v SoS TLR ex parte Wells [Conygar quarry - recommencing extraction]

  17. clarification in the courts - [EC Directives & ‘Direct Effect’] in the UK, third parties could only challenge a decision that an EIA is not required, via the ‘judicial review’ process 1991 R v Poole Borough Council, ex parte Beebee re granting itself planning permission for housing development 1990 Twyford Parish Council v Secretary of State for the Environment re M3 through Twyford Down SSSI / AONB

  18. clarification in the courts - [EC Directives & ‘Direct Effect’] latter cases have reinforced the principle that citizens have directly enforceable rights to challenge decisions on EIA in order to ensure substantial compliance with the Directive 1999 R v North Yorkshire County Council, ex parte Brownre Wensley Quarry in Yorkshire Dales National Park 2000 World Wildlife Fund v Autonome Provinz Bozen C-435/97 2001 Berkeley v Secretary of State for the Environmentre development of Fulham Football Club’s Craven Cottage site

  19. In 2002 the European Commission sent a reasoned opinion (second warning letter) to Spain for non-respect of the Community's EIA Directive. The decision concerns a hazardous waste facility at Zuazo, near Bilbao where the Spanish authorities had failed to undertake an EIA that complied with the terms of the Directive. Commenting on this decision, Environment Commissioner Margot Wallström said: "The EIA Directive is central to wise environmental decision-making. The Commission is committed to ensuring that national laws and practice recognise this."

  20. clarification in the courts - multi-stage consents Re developments in White City & Crystal Palace in London: outline planning consent should not be treated as full development consent and does not preclude need for EIA when later dealing with detailed reserved matters. 2006 R v London Borough of Bromley ex parte Barker (HoL) and Commission v UK: C-5-8/03; C-290/03

  21. but the EIA obligations only applies to individual developments and as such the benefits are temporally and spatially isolated and sporadic. therefore need for EIA process to occur at a strategic planning stage – thus providing for a more coordinated impact and an effective / efficient filter for individual developments - first drafts of SEA Directive in 1990/91

  22. 2001/42/EC - Directive on the assessment of the effects of certain plans and programmes on the environment - effective from July 2004 = SEA Directive aims to put more/earlier emphasis on sustainable development in the planning process

  23. plans & programmes relating to: * development planning * land use * water management * transport * fisheries * energy * waste management *agriculture * mineral extraction * forestry * telecommunications * tourism

  24. and plans & programmes which • set the framework for development consents for EIA Directive Annex I & II projects • impact on SAC sites as designated under the Habitats Directive Exceptions – plans and programmes which relate to • minor modifications or small areas at local level • national defence • civil emergencies • Government finances or budgets

  25. In UK – the SEA Directive is implemented under: The Environmental Assessment of Plans and Programmes Regulations [SI 2004/1633] The Regs apply to • plans and programmes whose formal preparation (or modification) began after 21/07/04; and to • plans and programmes already in preparation on the 21/07/04 but will not be adopted/subject to legal procedure by 21/07/06

  26. Requirements – on the ‘responsible authority’,during preparation of their plan or programme – ie before its formal adoption • preparation of an Environmental Report • consultation with relevant bodies and the public on both the plans/programmes and the Environmental Report • an explanation of decisions taken following the consultations • monitoring and assessment of impacts

  27. Requirements – on the ‘responsible authority’ - continuedSeaport Investments case = first in UK re SEA Directive: Justice Weatherup’s judgement held that the whole structure of the Planning Service (in N.Ireland) failed to comply with the Directive in that the regulations failed to specify a period of time for consultation. The judgement gives guidance on what is meant by ‘early and effective’ consultation, the requirements for an Environmental Report and non-technical summary  consultation at draft stage . Described by the press as a “body blow to the government” - it has profound consequences not only for Northern Ireland but also for England & Wales where the regulations are identical. .

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