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719: new EIA Directive consultation as Brexit arguments revealed

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719: new EIA Directive consultation as Brexit arguments revealed
Leave your thoughts Angus Walker

By Angus Walker

Today’s entry reports on two developments relating to the European Union.

Environmental Impact Assessment

A revised Environmental Impact Assessment (EIA) Directive was enacted in 2014, and EU member states have until 17 May 2017 to transpose it into their own legislation. One of the most requested documents via this blog has been the existing EIA Directive with tracked changes showing what is proposed, so there is quite a lot of interest in this.

Despite the UK voting to leave the EU (or deciding? see below), since those negotiations will take at least two years and haven’t started yet, the UK will still have to implement the revised EIA Directive by next May.

There has been no sign of this happening in England, but in Wales a consultation is underway on proposed changes. The consultation document can be found here, and acts as a useful summary of how the process will change. The consultation covers:

  • third party screening requests;
  • timeframes to provide scoping opinions;
  • coordination;
  • consultation and participation in the decision-making process;
  • monitoring of significant effects;
  • conflict of interest and function separation;
  • penalties and enforcement;
  • competent experts; and
  • purchase notices under the Town and Country Planning Act 1990.

Here’s a bit more detail on each of those, as I continue in the role of reading boring things so you don’t have to.

Third party screening requests: a bit of a Wales-specific one, if a planning authority says EIA is not required, a third party can appeal to Welsh ministers and this will be restricted to being within 35 days of the planning authority’s decision. However the Directive is more specific about what screening decisions should contain.

Scoping opinion timeframes: the new Directive makes scoping opinions binding on developers – their Environmental Statements will have to reflect them (more of a scoping decision, then) and also expands their scope to include things like climate change.  The consultation asks if more than five weeks should be allowed to produce one – note that under the Planning Act 2008 regime the period is six weeks.

Coordination: member states must either combine the process of EIA with Habitats Regulation Assessments, or ‘coordinate’ them. The Welsh government is proposing the latter. This could have Planning Act 2008 implications too.

Consultation and participation: the Directive requires that once published, all Environmental Statements are required to be consulted on for at least 30 days, and must be available electronically.  The former provision will require extending the minimum period for representations under the Planning Act 2008 from 28 to 30 days, but all ESs are already published electronically under that regime so no change needed there. I thought Environmental Statements were going to be renamed Environmental Impact Assessment Reports, but that doesn’t seem to be the case so far.

Monitoring: probably the main new thing. The Directive requires member states to include proportionate monitoring requirements to be included in any decision. Most Development Consent Orders (DCOs) contain such requirements already, but they are likely to grow.

Conflict of interest: the Directive requires that where the decision maker and the developer are one and the same that there is functional separation between those two roles and that decision-making is performed objectively. The government doesn’t tend to apply for DCOs, particularly now that the Highways Agency is Highways England, although this may have an impact on discharge of requirements.

Penalties and enforcement: the Directive requires appropriately deterrent penalties to be in place.  The Welsh government suggests that making false statements in ESs would be for financial gain and so would already be a criminal offence of fraud, and it will add a requirement to consider the objectives of the Directive when taking enforcement action.

Competent experts: a proposal for accreditation was dropped, and now the requirement is just that the ES is prepared and examined by competent experts. This consultation proposes requiring that of developers and that those examining applications have access to sufficient expertise.

Purchase notices: a very technical provision whereby if landowners are refused planning permission they can serve a purchase notice on the local authority to buy the land in question because it has become incapable of reasonably beneficial use.  The local authority can then grant planning permission, but this route does not currently import the requirements of EIA, so that needs to be added. Sounds more like a current gap than occasioned by the new Directive.

The consultation closes on 11 November if you want to contribute.  Presumably England will follow suit along similar lines in due course – keeping up with the Joneses?

Brexit arguments

This doesn’t have anything to do with the Planning Act 2008 specifically, but you may be interested to see the arguments on either side of the judicial review launched on the ground that withdrawal from the European Union can only be authorised by an Act of Parliament.  The judge ordered that they could be published even though the government didn’t want this.

The main group of claimants’ arguments are here, and the government’s defence is here. I found it interesting that the claimants say:


No party argues that the result of the referendum on 23 June 2016 was itself a “decision” that the UK should withdraw from the EU‘, whereas the government say ‘Article 50 of the Treaty on European Union sets out the procedure by which a Member State which has decided to withdraw from the EU may achieve that result.  That decision having been taken (Article 50(1)).

Luckily the two years for withdrawal to take effect runs from the date of notification of the decision rather than the date of the decision.

The government goes on to say that decisions about treaties can be taken without recourse to Parliament as that is within the scope of the royal prerogative.

It seems to me that it is not at all clear that the referendum was ‘the decision’ to leave the EU, and that may be the key issue.

Section 1 of the European Referendum Act 2015 just says:

A referendum is to be held on whether the UK should remain a member of the EU‘, not ‘… to decide whether …‘.  The government’s defence says ‘it was clearly understood that the Government would give effect to the result of the referendum for which the 2015 Act provided, and that was the basis on which the electorate voted in the referendum.

That may be so, but does that make the referendum the decision itself?  Was the decision in fact the government saying it would respect the referendum, either before or afterwards? Can that be pinpointed?

One last point of interest is that the claimants effectively say we’ll have to have primary legislation to amend the European Communities Act 1972, at least, but the government say not so, that Act just requires giving effect to all EU obligations, but if we leave, there simply won’t be any.

Interesting times. The case is being heard in the High Court on 13 and 17 October.

29 September 2016

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