Comments are being sought from The Department of the Environment (DOE) on new proposals for consolidating and amending the Planning (Environmental Impact Assessment) Regulations 1999 and 2008, as amended. There is a real opportunity for all to participate in the consultation paper in an attempt to influence the resulting legislation to the benefit of your interests.

The proposed amendments take account of:

• Latest case law including the Baker and Mellor Judgements; and
• European Directive Amendments including the Geological Storage Directive.
  

The DOE outlined its intention to use the opportunity to consolidate the current regulations to ensure they are more accessible, easier to understand and accordingly less vulnerable to challenge. It is also the intention of the DOE to review the existing Environmental Impact Assessment (EIA) Guidance as set out in Development Control Advice Note 10, with an update to issue shortly after the 2012 regulations come into operation.

Key changes proposed under the 2012 Regulations

1. Proposals to change or extend Schedule 2
   Development.  
   It is proposed that the current Schedule 2 thresholds are to be applied to the development as a whole once modified, and not just to the change or extension. This applies the principles of the ‘Baker case’ to Northern Ireland. The case concluded that the current English EIA regulations did not properlyimplement the EIA Directive, because it limited consideration of the environmental effects of a change or extension to the effects of that change or extension only. This has the benefit of removing uncertainty as to where the precise boundary of the development as changed or extended can be said to fall. A more significant consequence of this change is that many more applications for a change in positioning, modifications to layouts or extensions will now trigger an EIA assessment.
   
   
2. Proposals to Change or Extend Schedule 1
   Development
   As above the consultation proposes the addition of a provision for the screening of any change or extension to an existing or approved Schedule 1 project (where the change or extension is not a schedule 1 development in its own right).
   
   
3. Negative Screening Provisions
   Where a negative screening decision is made by the DOE they shall make available the reasons for that decision on request. This change endorses the principles in the ‘Mellor ruling’ and opens up the EIA screening to third party interests which are now entitled to be provided with the reasons why an EIA has not been requested. While this can present an opportunity for more substantial objection with delay, another likely consequence is the prospect of a legal challenge in this respect, which cannot be ignored.
   
   
4. Multi-stage Consents
   The new regulations will allow for the removal of the requirement for public consultation regarding the environmental statement at each stage of the process; provided the environmental statement produced at the outline stage satisfies the requirements of the EIA regulations. The background to this change comes from an amendment made by the DOE to the previous regulations in 2008 to transpose the requirement that consideration must be given to the need for EIA before determining a planning application for approval of subsequent consents. This unintentionally required a repeat of the public consultation process where the environmental statement was still adequate for purpose. As such this requirement is to be removed; simplifying the process for developers, but the timing and date of surveys will remain a key issue.
   
   
5. Removal of requirement for publicity for further/ any other information required for the purposes of a public inquiry
   The DOE is required under Regulation 15 to publicise environmental information. When ‘further information’ or ‘any other’ information is received as part of the statement of case, or rebuttal evidence for the purposes of a public inquiry. there is some uncertainty as to whether it can be construed as substantive information relating to the environmental statement and ‘received by the DOE’. The DOE intends to amend Regulation 15 to disapply its publicity responsibilities in cases where such information is provided for the purposes of a public local inquiry or hearing held under Article 31. This has been an area regularly challenged in recent years and the change is designed to speed up the inquiry process should further information be required as part of the process. It is likely to be a topical area of debate depending on whether you belong to a third party interest group, are the applicant or an objector.
   
   
6. Publicity of Environmental Information
   The new regulations will see the introduction of a provision requiring the DOE to advertise details regarding holding an inquiry, and where and how the public can access any documentation submitted including environmental information. The Planning Appeals Commission will be required to make reasonable opportunity for public inspection of environmental information including online access which makes the entire process more accessible and can only be viewed as a positive step forward.

So what does this mean for timescales?


On first inspection the major issue is the application of the existing thresholds to changes and extensions as this will bring many more developments within the scope of the EIA. More applications are therefore likely to fall within the EIA thresholds and attract a £10,000 levy on the cost of submission of the application. It also allows the DOE more time to determine an application A31, extends the timeframe before a non determination appeal can be taken, and requires a longer public consultation process than a non-EIA development. However, some of the other changes affecting the publicity around additional submissions may bring some comfort in that inquiry determination timescales may not be as prolonged as recent cases.

When does it all start?


The consultation closes on the 15th November 2011. Upon consideration of the responses, the redrafted regulations need to pass through the Environment Committee at Stormont; it is understood that the changes are likely to come into effect in early 2012. The key question is likely to be whether the changes will be applied to applications where a negative EIA screening response has already been provided. In which case, substantially advanced applications could suffer a significant setback, requiring re-advertisement and public consultation in accordance with the EIA directive. This is obviously something which should be resisted given the £10,000 levy it would attract as an immediate consequence.

For further information please contact our Belfast office.