As weather events become more extreme and biodiversity is continuously threatened, businesses need to conduct in-depth risk assessments to ensure developments do not add to the climate change risk. Environment Impact Assessments (EIAs) force companies to consider the impact of a particular project on the earth, sea, and atmosphere.

What is an Environmental Impact Assessment?

An EIA is the process in which a proposed development’s environmental risk is researched, communicated, and assessed. If you want to get planning consent for a development that will impact the environment, you must do an effective EIA.

The EIA process is covered by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the 2017 Regs) which are an implementation of EU law. The 2017 Regs apply the EU Directive 2011/92 (as amended) and the EU Directive 2014/52, which introduced, amongst other things, a specific obligation to consider Greenhouse Emissions (GHE). The 2017 Regulations remain in force despite the UK leaving the EU.

When does an Environmental Impact Assessment need to be done?

Not all developments require an EIA. Schedule 1 and 2 of the 2017 Regulations state what developments require the process to be carried out.

An EIA must be done if a development falls within Schedule 1 which covers developments over a certain size and includes a broad range of projects (such as power stations, airports, motorways, and water treatment plants).

If a development falls within Schedule 2 to the 2017 Regulations, an EIA may be required if the development:

• Is in a sensitive area (such as a Site of Special Scientific Interest (SSSI), a Special Protection Area (SPA), or a Special Area of Conservation (SAC)).
• Meets or exceeds a threshold or criterion specified in Schedule 2 (known as the exclusion or applicable thresholds and criteria).

Examples of developments covered by Schedule 2 include factories, wind farms, shopping centres, and car parks.

Who has to do an EIA?

The developers are responsible for undertaking an EIA and creating the Environment Statement (ES). You can request a scoping opinion from the Planning Authority reviewing the assessment. If the Secretary of State provides the guidance, it is known as a scoping direction.

What must be included in an Environmental Statement?

Regulation 18 and Schedule 4 of the 2017 Regulations sets out the information needed in an ES. If you have applied for a scoping opinion or scoping direction, you need to include the specific impacts stated in these documents.

The environmental statement will likely include several reports from EIA and environmental consultants on the potential significant environmental impacts. For example, a wind farm development might require research on the:

• Potential noise generated by the turbines and its impact on surrounding houses.
• Impact of the development on a sensitive area (such as an SAC).

How is an EIA carried out?

First things first, you need to look into the impact your development will have on:

• General population
• Human health
• Biodiversity
• Land, Water, Air, and Soil
• Culture
• Landscape

Unless you have such expertise in-house, you will probably need to bring in external consultants to help you understand the effect the development will have on the above.

An EIA is generally conducted through the following steps:

• Step one – request a screening opinion from the planning authority if you are unsure whether an EIA is required.
• Step two – scope out the environmental issues that must be considered. At this stage, you can ask for a scoping opinion or direction.
• Step three – prepare the environmental statement and submit it to the planning authority alongside the planning permission application.
• Step four – consultation with organisations such as the Environment Agency and Natural England may be needed. Relevant third parties will also need to be consulted. You must publish the ES and any other information requested in compliance with the guidance set out in the 2017 Regulations. The Planning Authority needs to provide enough time for comments and submissions to be considered.
• Step five – the Planning Authority will either grant or refuse planning permission. It needs to provide reasons for its decisions and any environmental mitigation measures that must be implemented during the development.

What does the decision in Finch v Surrey County Council mean for EIAs?

The UK Supreme Court in R (Finch) v Surrey County Council [2024] UKSC 20 recently redefined the scope of EIAs. By a two to three majority, the highest court in the land ruled that developers must now assess the downstream greenhouse gas (GHG) emissions of any oil and gas projects.

The Supreme Court stressed that oil extraction directly leads to its combustion, releasing GHGs. Therefore, the environmental impact must be assessed.

The idea that refining or the geographical distance of emissions could break the chain of causation in terms of GHGs being released was dismissed. The bottom line is that even though domestic oil and gas projects are being encouraged, that does not mean they can skimp on EIA compliance, which, given this latest judgment, must now be more comprehensive than ever.

Concluding comments

Conducting a thorough EIA before embarking on certain development projects is a non-negotiable if you want to get planning permission. At 43Legal, we have the knowledge and resources to undertake a comprehensive risk management process and EIAs. We can also advise and represent you if a dispute between you and the planning authority develops. We will resolve the dispute quickly and cost-effectively while protecting your best interests.

To learn more about any matters discussed in this article, please email us at [email protected] or phone 0121 249 2400.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article, please contact 43Legal.