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Impact assessments still important

17 October 16

Environment briefing: court proceedings over proposed offshore wind farms, and a consultation on changing environmental impact assessment rules, show the continuing impact for the time being of EU law

by Alastair McKie

The Prime Minister’s pledge at the Conservative Party Conference 2016 as part of Brexit to repeal the European Communities Act 1972 provides an important context to consider some important new matters arising in planning and environmental law:

  1. the judicial review petitions, Royal Society for the Protection of Birds v Scottish Ministers [2016] CSOH 103, 104, 105 and 106; and
  2. the Scottish Government’s consultation on the transposition of the EIA Directive 2014/52/EU into Scots law.

RSPB v Scottish Ministers

These cases sought review of the ministers’ decisions to grant the necessary authorisations for four major offshore wind farms in the Firth of Forth and Firth of Tay projects (Neart na Gaoithe, Inch Cape, Seagreen Alpha and Seagreen Bravo). On 19 July 2016 Lord Stewart in the Outer House quashed all of the authorisations due to breaches of environmental law. Reclaiming motions have now been enrolled by the ministers. A timetable has been set for the submission of the grounds of appeal (21 October 2016) and for the hearings (February 2017).

These projects were considered to have environmental effects on the Forth Islands and Fowlsheugh special protection areas (“SPAs”). These areas were designated in terms of the Birds Directive 2009/147/EC and the Habitats Directive 92/43/EEC. RSPB had serious concerns about the impact of the projects both individually and cumulatively on these SPAs. These concerns were shared by Scottish Natural Heritage and the Joint Nature Conservation Committee, the statutory nature conservation bodies.

Lord Stewart held that RSPB had been, in effect, unfairly “frozen out” of the process of assessment of the impacts on the SPAs, in circumstances where it had a valuable contribution to make. He also considered that the mathematical modelling in relation to impacts of the projects on protected birds within the SPAs was fundamentally flawed and understated. He further held that the ministers failed to afford sufficient protection to the Forth and Tay draft Marine SPA, even although it was only at draft stage.

The ultimate outcome may be impacted by Brexit, as the basis of the success thus far in judicial review terms depends on breaches of EU Law. However, the Prime Minister has indicated that as part of the repeal of the 1972 Act she will enshrine EU law in domestic law. This is intended to provide Parliament with the power to reassess which “EU laws” it wants to keep, and to remove or amend as appropriate.

EIA Directive 2014/52/EU

The Scottish Government consultation explains how ministers plan to implement this directive in Scottish legislation. The majority of environmental protection law affecting new development arises from the EU. Notable amongst this is the Environmental Impact Assessment Directive 2011/92/EU, which requires that qualifying development (usually but not limited to large-scale development) is assessed in terms of its potential environmental impacts, and that the developer prepares an environmental statement to accompany a planning or related application. This process is frequently the main area of challenge for those opposing development.

The 2011 Directive will be replaced with the 2014 Directive, which must be implemented by member states by 16 May 2017. Ministers are pressing ahead. The consultation, which ends on 31 October 2016, seeks views on changes to the following eight EIA regimes: agriculture, energy, forestry, land drainage, planning, marine, transport and works projects, and trunk roads, with separate arrangements for ports and harbours, flooding and controlled activities.

The aim of the new directive is to simplify matters in line with smarter regulation, and improve the level of environmental protection. Article 1(2)(g) describes the EIA process stage by stage, and the change from the term “environmental statement” that must accompany every qualifying application to “environmental impact assessment report”. Where there is an obligation to carry out an assessment under the directive and also under the Habitats Directive and/or Birds Directive, article 2(3) requires a coordinated or joint procedure to be used. Amendments have been made under article 3(1) to the broad requirements of the EIA process, including replacing “human beings” with “population and human health”, and “flora and fauna” with “biodiversity”.

Article 4(4) introduces a more detailed list for screening information, and article 4(5) clarifies the basis for screening. Article 5(1) sets out the required content of the EIA report, and adds a new provision that where a scoping opinion is issued the report must be based on this. Article 5(3) addresses quality concerns and requires that the developer must ensure that the EIA report is prepared by “competent experts”, and that the competent authority must ensure it has access to sufficient expertise to examine the report.

Article 6(1) considers which bodies are to be consulted, and article 6(2) and (5) requires electronic publication and addresses publication requirements. Article 6(7) sets out new minimum time frames for public consultation which, for example, will be 28 days for energy and planning consents. Article 8a(1) requires that the decision to grant development consent shall incorporate at least the reasoned conclusion and that any mitigation measures regarding monitoring of effects are identified and set out in the consent.

Article 8a(4) requires that development consents should (in a proportionate manner) set out the parameters and duration of any monitoring required. Article 8a(6) requires that the competent authority must be satisfied that the reasoned conclusion or any EIA decisions are “up to date” when taking a decision to grant development consent. This addresses concerns that such decisions in regard to EIA can have a limited shelf life.

The requirement to inform the public of decisions to grant or refuse development consent (article 9(1)) shall include the outcome of consultations and the information gathering exercise.

Article 9a deals with “objectivity” and is based on European Court of Justice case law. In circumstances where the organisation is both the developer and the consultation body and/or the competent authority, an appropriate separation must be made to avoid conflicts of interest when undertaking duties under the directive.

Alastair McKie, partner, Anderson Strathern LLP

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