EIA Onshore Developments

Key Legislation:

For more detail on the Legislation relevant to this page, please use the following links:

Supporting Legislation:
Guidance Notes:

Scotland

England and Wales

In addition, various planning policy guidance notes are available at the following links:

Changes to Town and Country Planning (Development Management Procedure) (England) Order 2010 for onshore oil and gas extraction – Impact Assessment (PDF document)

The UK Government is committed to an effective and efficient planning system and has taken forward a series of measures to simplify and streamline the arrangements for making and determining planning applications (in England only).

In November 2015, IEMA announced the launch of new guidance launched seeking to support EIA professionals to achieve better, faster outcomes to their assessments at a reduced cost. The two guides aim to ensure that environmental thinking is firmly embedded into the design process and realistic project resilience measures are in place

The Environment Agency and Defra have provided some management guidance on how to carry out a risk assessment if you’re applying for a bespoke permit that includes the discharging of hazardous pollutants to surface water.

Requirement for EIA: EIA is mandatory for projects listed in Schedule 1 of the EIA Regulations.

Where an EIA is not automatically mandatory, dispensation must be sought from the local planning authority not to produce an ES. Projects requiring consideration are listed in Schedule 2 of the EIA Regulations and are determined on a case-by-case basis using criteria set out in Schedule 3.

How to Apply for it:

A project must first be screened to determine if an EIA is required. This may be determined by the EIA regulations which provide guideline and criteria thresholds that are likely to result in significant environmental impacts and, as such, an EIA will be required. Schedule 1 of the EIA provides a list of projects for which an EIA is mandatory. If the proposed project is listed in Schedule 2 and exceeds the associated thresholds, the operator can either decide independently that an ES will need to be completed, or he can apply to the planning authority for a decision on whether an ES is needed.

Either subsequently or in parallel to this screening request the operator may apply to the planning authority for a scoping opinion to identify the likely areas of potentially significant impact for further investigation. This application must include:

  • A plan sufficient to identify the land
  • A brief description of the nature and the purpose of the development and of its possible effects on the environment
  • Such other information or representations as the person making the request may wish to provide or make

Scoping generally occurs between the developer, competent authority, relevant agencies and statutory consultees such as SEPA, RSPB, etc. The purpose of the scoping process is to focus resources and time by identifying what the possible impacts of the proposal are likely to be and to suggest possible mitigation measures. The scoping process will help to establish communications between the developer and statutory consultees and will flag any constraints and potential difficulties to the developer.

The planning authority will take into account the criteria listed in Schedule 3 of the Regulations when determining whether a project shall be subject to EIA.

Who to Apply To: Application in writing to the appropriate planning authority.
When to Apply: The operator can apply to the appropriate planning authority at any time for a decision on the need for an ES, i.e. well in advance of a formal planning application. If the operator makes such an approach, the planning authority are required to give their decision within 3 weeks of receiving the application.
Procedure if ES not needed
No ES Required: If a project is not listed in Schedule 1 of the EIA Regulations and it has been screened by the Local Planning Authority to determine that an EIA is not required for the Schedule 2 listed project, then it is considered to have produced a negative screening opinion. The operator will be informed of this decision and may then proceed with the planning application without providing an EIA.

 

How the Process is Initiated: An Environmental Statement (ES) is either required because it is mandatory (see previous tabs), or the operator has voluntarily decided to undertake one, or the local planning authority decides that an ES is required if the project is listed in Schedule 2, and an opinion has been sought.If subsequent to making an application requesting an opinion on the requirement for an ES, the planning authority decides that an ES is required, they must provide a written statement giving clear and precise reasons for their decision. If the operator is dissatisfied with the planning authorities decision, he may refer the matter to the Secretary of State.
Preparing the ES:

The contents of the ES must satisfy the requirements of Regulation 2 of the 2000 Regulations, and include in particular:

  • A description of the proposed development
  • A description of the aspects of the environment likely to be significantly affected by the proposed development
  • A description of the likely significant effects which may result from the existence of the proposed development, the use of natural resources and emission of pollutants, nuisances and elimination of waste
  • A non-technical summary
Submitting the ES and Planning Application:

The completed ES should be submitted to the planning authority along with the planning application. The operator is also required to publish a notice in a local newspaper and to post notices at the proposed development site indicating where and when the ES may be inspected. The place should be in the locality of the project and the ES should be available for inspection at reasonable hours.

The operator is required to provide the planning authority with sufficient copies of the ES to enable one to be sent to each of the statutory consultees. In addition, the operator should make a reasonable number of copies of the ES available for sale to members of the public. A reasonable charge reflecting printing and distribution costs may be made.

Subsequent to the submission of the ES, further consultation between the planning authority and the operator may be necessary to consider comments made by the consultees, and possible amendments to the ES to meet objections that have been raised.

When determining the application, the planning authority cannot take the view that a planning application is invalid because they consider that an inadequate ES has been submitted. In that event the planning authority should request the operator to supplement his initial ES. If the operator fails or is unable to do so, it will be for the planning authority to decide whether to refuse permission.

When to Submit: The operator’s planning authority are required to determine a planning application which has been accompanied by an ES within 16 weeks of receiving it.
Possibility for Overturning of Consent: The operator has the right to appeal to the Secretary of State against an adverse decision by a planning authority. The information that the ES contains will be among the material considerations which an Inspector will take into account when considering an appeal. The Secretary of State and his Inspectors, like the planning authority, have power to request the operator to provide further information where they consider that the ES is inadequate as it stands. Any additional information provided by the operator in response to a request will be made available to all parties to an appeal.
Consultation:
Early informal consultation with interested parties is highly recommended rather than waiting for the period of formal consultation. Organisations that should be considered for early consultation include (this list is not exhaustive):

  • English Heritage or Historic Scotland
  • Natural England, Countryside Commission for Wales or Scottish Natural Heritage
  • Environment Agency (EA) or Scottish Environmental Protection Agency (SEPA)
  • Crown Estate Office
  • Other transport industries including British Telecom, Railtrack, Public Electricity Supply Companies, Oil and Pipelines Agency, and local Coal Authorities
  • Country Landowners Association or Scottish Landowners Federation
  • National Farmers Union or National Farmers Union of Scotland and other local equivalents
  • Farming and Rural Conservation Agency (England) or Farming and Wildlife Advisory Group (FWAG) (Scotland)
  • Local planning authorities
  • Health and Safety Executive

 

Conditions in Consent: ES approval and project approval are likely to contain conditions, in particular the expectation that commitments made in terms of environmental impact mitigation and management within the ES will be adhered to.
Habitats Directive and Birds Directive: The planning authority is obliged to take proper account of the obligations stemming from the Birds and Habitats Directives to protect and conserve the marine environment. See Habitats Regulatory Assessment page for more details.
Transboundary Effects: If the project is likely to have significant transboundary effects, these must be addressed in the EIA and reported in the ES.
Cumulative Effects: An individual project may pose minor environmental impacts to the environment but when considered alongside other projects the cumulative effect may be potentially much higher. Potential cumulative effects should be identified and considered within the EIA process.
 Not directly applicable.
 Not directly applicable.
Operating in breach of requirements: If a project listed in Schedule 1 or 2 of the Regulations is undertaken without having a planning application and where applicable an ES approved, the operator will be prosecuted.
Renewal: Planning approval will set a timescale for the project to go ahead. If the project does not go ahead within this time then a new application/renewal of ES will be required.

Any project variation that may alter the findings of the EIA undertaken must be notified to the planning authority. They may request additional environmental information to be supplied. For significant variations, they may request an additional EIA be undertaken and ES submitted as this may qualify as a project modification.

Scottish Planning Policy (SPP) Consultative Draft – Onshore Oil and Gas Developments: The Scottish Government is proposing changes to their planning policy (see below). In particular, the proposed policy changes include changes related to onshore oil and gas developments:Current policy on planning control over onshore oil and gas operations is set out in Circular 12/1986. The Circular indicates the national policy considerations which need to be taken into account, the importance of including appropriate policies in development plans and some of the factors to be considered when determining individual planning applications. The Circular supports the maximum economic exploitation of oil and gas reserves over time, consistent with good oilfield practice and protection of the environment. The National Planning Framework highlights the potential for coal bed methane to contribute to national gas supplies and requires planning authorities in the Central Belt to consider the potential for onshore gas extraction when preparing their development plan.Scottish Ministers are proposing to update policy relating to onshore oil and gas operations, replacing Circular 12/1986 with a new section in the consolidated SPP. The proposed policy is:

  • Planning authorities and licensed operators should work together to ensure that operational requirements and likely environmental impacts of development associated with extraction are understood.
  • Development plans in areas covered by Petroleum Exploration and Development Licenses should identify the areas within which extraction may be acceptable and the factors that should be taken into account when deciding planning applications for initial exploration and for production phases.
  • Relevant factors may include disturbance and disruption from noise, potential pollution of land, air and water, impact on communities and the economy, cumulative impact, impact on the natural heritage and historic environment, landscape and visual impact, and transport impacts.
  • Where PEDL licences extend across local authority boundaries, planning authorities should work together to ensure a consistent approach to on-shore oil and gas extraction, including the consideration of cumulative effects.
  • Where possible, transport of the end product from the extraction point should be via pipeline, rail or water transport rather than by road.
  • Planning authorities should ensure that conditions requiring the removal of equipment and full restoration of sites following completion of extraction are attached to any planning consents.
  • When identifying drilling locations, operators should take into account the potential effects on neighbouring uses and use directional drilling wherever feasible. Drilling operations should not be permitted close to houses and other noise-sensitive properties unless noise levels from drilling and associated operations can be reduced to acceptable levels.
Espoo Convention:

The 2nd Amendment to the Espoo Convention was adopted in 2004. Once in force, it will allow affected Parties to participate in EIA scoping, require reviews of compliance and enable contracting parties to revise the list of activities covered by the Convention in Appendix I.

Planning etc. (Scotland) Act 2006: The Planning etc. ( Scotland) Act 2006 (PDF document) is one of the most important reforms in the planning system in recent years, providing a legal framework for administration by central and local government. The timetable for the roll out of the Act by the Scottish Executive indicates the provisions of the relevant statutory instruments will be fully operational in the course of 2008/9. The Planning Act does not repeal the Town and Country Planning (Scotland) Act 1997 and other existing planning legislation; it operates by way of replacing new sections into the current Acts.
The Environmental Impact Assessment (Scotland) Regulations 2010: Consultation Report: In February 2011 the Scottish Government published a report summarising the consultation responses received by the Scottish Government to its consultation on The Environmental Impact Assessment (Scotland) Regulations 2010 (PDF document). The report also provides an outline of the Scottish Government’s proposals for taking forward the development of secondary legislation.
Wildlife Management Legislation Reform: In 2012 the Law Commission undertook consultation to reform outdated wildlife legislation. Much of the older legislation is out of step with modern requirements, and the principal modern Act – the Wildlife and Countryside Act 1981 – has been amended to such a degree that it is difficult for any non-specialists to use. A consultation summary paper (PDF document) has been produced alongside a consultation impact assessment (PDF document).
Proposals for an Integrated Framework of Environmental Regulation: The proposals outlined by SEPA will deliver a simpler legislative framework which will enable SEPA to focus its greatest effort on the environmental problems that matter most. It will provide a more consistent range of enforcement tools so that proportionate and effective action can be taken against those who would damage the environment. The consultation that has been undertaken is built on previous consultations focusing on changes to the structure of environmental protection legislation in order to create a new, integrated framework for the permissions (licences, permits, rules, etc.) which will be used to control activities which could harm the environment.
Consultation on Environmental Impact Assessment amending Scottish Environmental Impact Assessment Regulations to Transpose Directive 2014/52/EU Scottish Ministers are inviting comments on a Consultation (available here), setting out proposals for implementing Directive 2014/52/EU (amending) Directive 2011/92/EU on the assessment of the effects of certain public and private projects in the environment.Any responses must be submitted by 31st October 2016.
Environmental Liability Directive 2004/35/EC:

The Environmental Liability Directive was adopted in 2004 and was required to be implemented by 30 April 2007. The Directive enforces strict liability for prevention and remediation of environmental damage to ‘biodiversity’, water and land from specified activities and remediation of environmental damage for all other activities through fault or negligence.The Environmental Liability Directive is now implemented in England and Wales. In Scotland The Environmental Liability (Scotland) Regulations 2009 came into force on 24 June 2009.

Developers: get environmental advice on your planning proposals Natural England, the Environment Agency and Defra have produced a guide advising developers to consult the Environment Agency, the Marine Management Organisation or Natural England (‘the agencies’) early in the planning process for environmental advice on relevant planning applications. They’ll tell you about environmental issues and help you to deal with them. You must consult the Marine Management Organisation if the project is on the coast (eg it involves slipways, jetties and dredging). More information available here.
Integrated Coastal Zone Management Strategy for England and Wales:

Integrated Coastal Zone Management Strategy for England and Wales, which promotes an integrated approach to the management of coastal areas in England and Wales, sets out the Government’s vision for the process of coastal management, objectives and future actions to achieve the vision, and briefly explains how all the changes currently being taken forward will work together in coastal areas.

Offshore Directive – Consultation (Directive 2013/30/EU on the safety of offshore oil and gas operations):

The Department of Energy and Climate Change (DECC) and HSE have undertaken an extensive consultation programme on the proposals to transpose the offshore Directive into UK law and on other relevant matters, including establishing an offshore competent authority.

The consultation document is still available from the UK Government website

Ten Year Health Check for UK’s most important bird sites The JNCC has submitted a review of the important UK bird species status with respect to the Special Protection Areas (SPAs) designated to protect them.
The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations SI 2016/58 The Welsh Government launched a consultation into proposed changes to how EIA applies to Town and Country Planning which implements Directive 2011/92/EU, the EIA Directive. The consultation is scheduled to conclude on the 11th November 2016.More information is available here.