Advice to Mark de Pulford
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- From
- Mark de Pulford
- Date advice given
- 26 January 2018
- Enquiry type
A question, please, about the scope of the environmental impact assessment described in the consultation documents recently issued by RSP.
I note that a scoping opinion was sought from PINS/the Secretary of State prior to the first statutory consultation. But that concerned an environmental assessment which was to be conducted in accordance with legal rules which have now changed. I appreciate that there is considerable overlap between the two sets of regulations. On the other hand, -and as the European Commission explained when the parent law was made - the new law requires a deeper approach to environmental impact.
Reading through the PEIR I have come across a number of important instances where there is a question whether the new Regulations require further or different work by the developer. Air quality, heritage assets, and noise are examples of three areas where such points have arisen. In these instances the question appears quite often to have been resolved in the negative by the developer. They includes cases where the Secretary of State/PINS gave written notice of disagreement with the developer's decisions on "scoping out" under the old regulations.
I think I understand that the developer's judgement is not final and that matters he has ruled out of scope actually remain in scope until and unless the Secretary of State determines otherwise. But the developer's current decisions plainly potentially affect the depth and quality of the consultation. Indeed they risk contradicting the purpose of the new Union law which is to ensure that the public and others are consulted on the basis of a full picture of the significant environmental effects of the developer's plans.
Given that these are new and to some extent untested Regulations, the public interested in the developer consulting you and the local authority about what should be scoped in and scoped out would seem especially strong. Perhaps the developer did so informally?
Could you kindly clarify the position regarding scope and explain how best ordinary members of the public can enjoy the rights intended for them by the new Regulations?
Advice given
The current consultation being undertaken by the Applicant concerns Preliminary Environmental Information (PEI). PEI is described in the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (the EIA Regulations 2009) as:
“information referred to in Part 1 of Schedule 4 which— (a) has been compiled by the applicant; and (b) is reasonably required to assess the environmental effects of the development (and of any associated development);”
In the revised regulations the Infrastructure Planning (Environmental Impact Assessment) Regulations (the EIA Regulations 2017), PEI is described as: “information referred to in regulation 14(2) which— (a) has been compiled by the applicant; and (b) is reasonably required for the consultation bodies to develop an informed view of the likely significant environmental effects of the development (and of any associated development).”
In undertaking consultation on PEI, the Applicant is fulfilling part of their consultation requirements under the EIA Regulations and the Planning Act 2008. This provides the public and consultation bodies the opportunity to comment on the assessment undertaken.
A Scoping Opinion was sought under the EIA Regulations 2009. Scoping is a voluntary process that an Applicant may choose to undertake but is not a legal requirement. The EIA Regulations 2017 included transitional provisions that allow an applicant to continue to progress a project under the EIA Regulations 2009 subject to certain circumstances defined in the regulations. It is for an Applicant to justify which set of regulations they consider they fall under.
With respect to a Scoping Opinion, under the EIA Regulations 2009 an Applicant could request an Opinion as to the information to be provided in the environmental statement. The Applicant should provide this information unless it is able to justify not providing it (e.g. the design of the project has changed therefore the original Scoping Opinion is not fully applicable). The Applicant has not sought a Scoping Opinion under the EIA Regulations 2017.
On submission of an Environmental Statement with a submission for development consent, the Inspectorate will consider whether the Environmental Statement complies with the regulations and is sufficient to be examined.