by Julie Martin
At the end of January, the Department of the Environment finally published its draft proposals for implementation of the European Community Directive on Environmental Assessment(1). Despite all the department’s assurances to the contrary, the new procedures seem certain to bring about some significant changes in project planning and development control. There will be important implications for a wide range of industrial and commercial developers, as well as for the estates, planning and landscape professions.
The proposals come in the form of a draft circular(2) issued on January 26. The circular describes the proposed new Environmental Assessment Regulations 1988, which will be used to bring the directive into force by July 3 this year.
Contrary to early expectations, the new procedures will apply not only to the major development projects listed in Annex I of the directive but also to certain smaller-scale agricultural, forestry, minerals, manufacturing and infrastructural projects listed in Annex II. The onus will be on developers to submit environmental assessments in support of development applications. The draft circular spells out a series of criteria and thresholds which will be used to help determine whether or not an environmental assessment must be prepared for any given project. This article describes the circular’s key requirements and considers some of the environmental planning issues which may soon come to the fore.
The regulations
The basic tenor of the circular is that environmental assessment should be incorporated into existing procedures for planning control, under the Planning Acts and other relevant legislation, with as little change as possible. The covering letter from the DOE is at pains to stress that most of the types of development listed in Annexes I and II are already subject to controls which include a consideration of environmental issues.
It is argued that “the additional costs arising from the requirement to prepare an assessment will be small” and that “the fuller information made available through the environment assessment process may help to shorten public inquiries or in some cases make them unnecessary”.
The nature of the assessment which will be required is outlined, and it must include:
- a description of the project’s physical characteristics, production processes and emissions;
- “where appropriate”, an outline of the main alternatives to the project;
- a description of the aspects of the environment likely to be affected and of any significant effects likely to be caused;
- a description of measures to prevent, reduce and offset any significant adverse effects.
The scope of the assessment is to cover effects of the project on “population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape” and the inter-relationship between these factors.
It is clear that all Annex I projects will be subject to environmental assessment. This is not, and never has been, at issue. Annex I projects comprise major oil refineries and power stations; radioactive waste disposal installations; iron and steel works; asbestos works; integrated chemical installations; major motorways, railways, airports ports, and inland waterways; and toxic waste disposal projects.
The position relating to Annex II projects is far more complex. The intention is that these will be subject to assessment where they are “likely to have significant effects on the environment”. The issue of significance will be decided in the first instance by the local planning authority. If the developer disagrees with a request by the local planning authority to prepare an assessment, the matter may be referred to the Secretary of State. In the case of agriculture, forestry, transport, energy and other projects not directly subject to planning control, the issue of significance will be decided by the appropriate central government department or agency.
The circular sets out three types of case in which environmental assessment of Annex II projects may be needed:
(1) major projects which are of more than local importance;
(2) smaller projects proposed for particularly sensitive locations;
(3) projects with unusually complex and potentially adverse environmental effects.
The circular indicates that projects in the first category may include large mining operations, substantial new manufacturing plant, and major infrastructure projects such as barrages. It is considered especially likely that such projects will require environmental assessment where they depart from approved development plans.
For the second category, particularly sensitive locations are defined to include national parks, sites of special scientific interest (SSSIs), national nature reserves (NNRs), and areas of archaeological importance. Significantly, areas of high landscape quality are not accorded the same priority. Indeed, the guidance specifically states that “the Secretary of State does not consider that EA will be needed for the normal run of Annex II projects simply because the proposal is located in an area of outstanding natural beauty or green belt”.
The third category — projects with unusually complex and potentially adverse effects — relates to industrial projects involving hazardous emissions. For these the environmental assessment will not affect discharge and other consent procedures, but the circular suggests that it should help to ensure that full information and expert analysis of environmental effects are available before any decision is taken on a planning application.
Finally, indicative criteria and thresholds for identification of projects requiring environmental assessment are outlined in some detail. (They are summarised in Table 1.) It should be noted that in the circular itself they are heavily qualified and it is obviously the Government’s intention to retain the maximum possible discretion to treat each individual case on its merits.
Table 1 Annex II projects which may require an environmental assessment
Projects subject to control under the Planning Acts
New pig-rearing installations for more than 400 sows or 5,000 fattening pigs.
New poultry-rearing installations for more than 100,000 broilers or 50,000 other poultry.
New salmon-rearing installations designed to produce more than 100 tonnes of fish per year.
New drainage, flood-defence and coast-protection works in particularly sensitive areas where consultations have failed to resolve environmental issues.
All new deep mines apart from small drift mines.
Opencast coal mines and sand and gravel workings of more than 50 ha (or less, if in a sensitive area).
Oil and gas extraction where production is expected to exceed 300 tonnes per day (or less, if in a sensitive area).
New manufacturing plants requiring sites in the range 20-30 ha or above.
New manufacturing plants which would give rise to large quantities of potentially hazardous or polluting substances.
New private and local authority roads over 10 km in length and major road improvements over 1 km in length if in a National Park, SSSI, NNR or conservation area.
Smaller new airports not covered by Annex I, plus major works at larger airports.
Other infrastructure projects requiring sites in excess of 100 ha.
Waste disposal sites with a capacity of more than 75,000 tonnes a year.
Projects subject to other controls (authorising body shown in brackets)
Large flood-relief projects in particularly sensitive locations (Ministry of Agriculture).
Afforestation on a significant scale in areas subject to national designation on ecological grounds (Forestry Commission).
New roads over 10 km in length and new roads or major road improvements over 1 km in length if in a National Park, SSSI, NNR or conservation area (Department of Transport).
Harbours not covered by Annex I, including fishing harbours (Department of Transport).
Power stations of less than 300 MW and overhead electricity lines, at the discretion of the Secretary of State for Energy (Department of Energy).
Offshore dredging for minerals where there are likely to be significant environmental effects (Crown Estate Commissioners).
Major offshore salmon-farming developments in areas of particular conservation value (Crown Estate Commissioners).
Environmental planning issues
The main question which arises is: how many projects are likely to be affected by the environmental assessment regulations? It is widely accepted that Annex I projects are few and far between and most are already subject to some form of environmental assessment because of their scale and importance. However, Annex II projects are much more numerous. The circular envisages that only a small proportion will require assessment, “possibly no more than a few dozen projects a year”.
However, some local planning authorities may wish to interpret the circular’s criteria and thresholds more generously, and this may open the way to disputes between central and local government as to which projects should be assessed. It also remains to be seen how developers will respond. Some developers, for example BP at Wytch Farm in Dorset, have already found that environmental assessment pays off in terms of good public relations, improved project design and the speedy processing of planning applications. Thus it could be argued that it is in the developer’s best interests to co-operate in the preparation of an assessment, even to the extent of preparing an assessment where not specifically requested.
Another important issue relates to the scope and quality of the assessment. For some projects the requirement to consider alternatives may be a crucial point. For instance, for the proposed Hinkley Point “C” nuclear power station the Central Electricity Generating Board will be required to demonstrate at public inquiry that it has considered alternative sites and non-nuclear sources of energy. Without the directive this might not have come within the inquiry terms of reference.
In general, however, safeguards over the scope and quality of the assessment appear to be weak. The circular states that “it will not be open to the local planning authority to take the view that a planning application is invalid because an inadequate EA has been supplied”. In these circumstances the planning authority may refuse permission, but the developer will have the normal right of appeal to the Secretary of State.
Perhaps the most controversial matter arising from the circular is the treatment of agriculture and forestry projects. Effectively, the Government has made little effort to apply the directive meaningfully to these projects. Any assessment which is carried out will continue to be at the discretion of the Ministry of Agriculture or Forestry Commission, but in many instances these bodies are themselves the developers. The European Commission is believed to be unhappy at this interpretation and there are certain to be renewed protests from conservation bodies. In addition, landscape conservation bodies are likely to be concerned about the poor provisions for environmental assessment in AONBs and green belt.
The question of resources is also a vexed point. The circular emphasises that there will be no unnecessary additional burdens placed on either developers or authorities, but clearly there will be some extra burdens. Many developers, particularly for the smaller-scale Annex II projects, will not possess in-house skills capable of covering the full range of environmental matters which must be included in the assessment. Thus they may need to call in consultants. For local planning authorities, assessments will be examined as part of the normal development control process, but additional specialist skills are also likely to be required. For example, in relation to industrial hazards and pollution, the circular suggests that these issues should be explored more fully, and opened up to public scrutiny. This will be of great benefit, because in the past the indirect and cumulative effects of pollutants have often been overlooked in the absence of a comprehensive environmental assessment. However, it is highly questionable whether local planning authorities have the ability, in-house, to critically review assessments of this kind.
These and other issues will be the subject of considerable debate during the current round of consultations on the draft circular. The final outcome is still unclear, but it seems inevitable that the impacts of the regulations will be more wide ranging than the circular itself suggests.
References
(1) Commission of the European Communities (1985) “Council Directive of June 27 1985 on the assessment of the effects of certain public and private projects on the environment” Official Journal of the European Communities No L 175/40-48, July 5 1985
(2) Department of the Environment (1988) Draft Circular on Environmental Assessment: Implementation of EC Directive, London: DOE