The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017

Made: 18th April 2017

Laid before Parliament: 19th April 2017

Coming into force: 16th May 2017

The Secretary of State, having been designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to the environment, in exercise of the powers conferred by section 2(2) of that Act and having taken into account the selection criteria in Annex III to Council Directive 2011/92/EU , makes the following Regulations:

Citation and commencement

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These Regulations may be cited as the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 and come into force on 16th May 2017.

Review

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• (1) The Secretary of State must from time to time—

• (a) carry out a review of the regulatory provision contained in these Regulations; and

• (b) publish a report setting out the conclusions of the review.

• (2) The first report must be published before 16th May 2022.

• (3) Subsequent reports must be published at intervals not exceeding 5 years.

• (4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015 requires that a review carried out under this regulation must, so far as is reasonable, have regard to how the obligations under the Directive are implemented in other Member States.

• (5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulation must in particular—

• (a) set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a);

• (b) assess the extent to which those objectives are achieved;

• (c) assess whether those objectives remain appropriate; and

• (d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves a less onerous regulatory provision.

• (6) In this regulation “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).

Interpretation

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• (1) In these Regulations—

• “the Act” means the Planning Act 2008 ;

• “applicant” means—an applicant for an order granting development consent or a person who proposes to apply for such an order; oran applicant for subsequent consent or a person who proposes to make a subsequent application;

• “associated development” means development for which development consent may be granted in accordance with section 115 (development for which development consent may be granted);

• “the consultation bodies” means—a body prescribed under section 42(1)(a) (duty to consult) and listed in column 1 of the table set out in Schedule 1 to the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 where the circumstances set out in column 2 of that table are satisfied in respect of that body;each authority that is within section 43 (local authorities for purposes of section 42(1)(b)); andif the land to which the application, or proposed application, relates or any part of that land is in Greater London, the Greater London Authority;

• “the Directive” means Council Directive 2011/92/EU as it had effect immediately before exit day;

• “EIA” has the meaning given by regulation 5;

• “EIA development” means development which is either—Schedule 1 development; orSchedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location;

• “environmental information” means the environmental statement (or in the case of a subsequent application, the updated environmental statement), including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations and any representations duly made by any other person about the environmental effects of the development and of any associated development;

• “environmental statement” has the meaning given by regulation 14;

• “Examining authority” means the Panel or single appointed person appointed under section 65 (appointment of members, and lead member, of Panel) or section 79 (appointment of single appointed person) to examine an application under section 37, and may include one or more members of the Panel allocated a function of the Panel in accordance with section 76 (allocation within Panel of Panel's functions) ;

• “EU environmental assessment” means an assessment of the effect of anything on the environment carried out under assimilated law other than any law of any part of the United Kingdom that implemented the Directive;

• “exempt development” means development in respect of which the Secretary of State has made a direction under regulation 33;

• “further information” means additional information which, in the view of the Examining authority, the Secretary of State or the relevant authority, is directly relevant to reaching a reasoned conclusion on the significant effects of the development on the environment and which it is necessary to include in an environmental statement or updated environmental statement in order for it to satisfy the requirements of regulation 14(2);

• “monitoring measure” means a provision requiring the monitoring of any significant adverse effects on the environment of proposed development, including any measures contained in a requirement imposed by an order granting development consent;

• “any other information” means any other substantive information provided by the applicant in relation to the environmental statement or updated environmental statement;

• “register” means a register kept pursuant to section 39 (register of applications);

• “relevant authority” means the body which determines a subsequent application;

• “Schedule 1 development” means development, other than exempt development, of a description mentioned in Schedule 1 to these Regulations;

• “Schedule 2 development” means development, other than exempt development, of a description mentioned in Schedule 2 to these Regulations;

• “scoping opinion” means a written statement—by the Secretary of State as to the information to be provided in an environmental statement as described in regulation 10(1); orby the relevant authority as to any further information to be provided in an updated environmental statement as described in regulation 10(2);

• “screening direction” means a direction made by the Secretary of State as to whether or not development (including any associated development) is EIA development;

• “screening opinion” means a written statement of the opinion of the Secretary of State or the Examining authority as to whether development (including any associated development) is EIA development;

• “subsequent application” means an application to the relevant authority for approval of a matter where—the application is made in pursuance of a requirement imposed by an order granting development consent; andthe approval must be obtained before all or part of the development permitted by the consent may begin;

• “subsequent consent” means consent granted pursuant to a subsequent application;

• “subsequent screening opinion” means a written statement of a relevant authority as to whether further information is required to enable it to determine a subsequent application;

• “UK environmental assessment” means an assessment carried out in accordance with an obligation under the law of any part of the United Kingdom of the effect of anything on the environment;

• “updated environmental statement” means the environmental statement submitted as part of an application for an order granting development consent, updated to include any further information.

• (2) Except in regulation 2, any reference in these Regulations to a section is a reference to a section of the Act.

• (3) Expressions used both in these Regulations and in the Act have the same meaning for the purposes of these Regulations as they have for the purposes of the Act.

• (4) Expressions used both in these Regulations and in the Directive have the same meaning for the purposes of these Regulations as they have for the purposes of the Directive.

Prohibition on granting consent without consideration of environmental information

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• (1) This regulation applies to—

• (a) applications for an order granting development consent for EIA development received by the Secretary of State; and

• (b) subsequent applications for EIA development received by a relevant authority.

• (2) Where this regulation applies, the Secretary of State or relevant authority (as the case may be) must not (in the case of the Secretary of State) make an order granting development consent or (in the case of the relevant authority) grant subsequent consent unless an EIA has been carried out in respect of that application.

Environmental impact assessment process

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• (1) The environmental impact assessment (“the EIA”) is a process consisting of—

• (a) the preparation of an environmental statement or updated environmental statement, as appropriate, by the applicant;

• (b) the carrying out of any consultation, publication and notification as required under these Regulations or, as necessary, any other enactment in respect of EIA development; and

• (c) the steps that are required to be undertaken by the Secretary of State under regulation 21 or by the relevant authority under regulation 25, as appropriate.

• (2) The EIA must identify, describe and assess in an appropriate manner, in light of each individual case, the direct and indirect significant effects of the proposed development on the following factors—

• (a) population and human health;

• (b) biodiversity, with particular attention to species and habitats protected under any law that implemented Directive 92/43/EEC and Directive 2009/147/EC ;

• (c) land, soil, water, air and climate;

• (d) material assets, cultural heritage and the landscape;

• (e) the interaction between the factors referred to in sub-paragraphs (a) to (d).

• (3) The effects referred to in paragraph (2) on the factors set out in that paragraph must include the operational effects of the proposed development, where the proposed development will have operational effects.

• (4) The significant effects to be identified, described and assessed under paragraph (2) include, where relevant, the expected significant effects arising from the vulnerability of the proposed development to major accidents or disasters that are relevant to that development.

• (5) The Secretary of State or relevant authority, as the case may be, must ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement or updated environmental statement, as appropriate.

When development is EIA development: general cases

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• (1) The occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.

• (2) The events referred to in paragraph (1) are—

• (a) a person notifying the Secretary of State in writing under regulation 8(1)(b) that that person proposes to provide an environmental statement in respect of proposed development;

• (b) the adoption by the Secretary of State or an Examining authority of a screening opinion to the effect that the development is EIA development; or

• (c) the making of a screening direction by the Secretary of State pursuant to regulation 7 to the effect that the development is EIA development.

When development is EIA development: screening directions by the Secretary of State

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• (1) A direction of the Secretary of State shall determine for the purpose of these Regulations whether or not development is EIA development but may only be given if—

• (a) the Secretary of State has accepted an application for an order granting development consent for that development; and

• (b) paragraph (3) or paragraph (4) applies.

• (2) The Secretary of State may give a direction under paragraph (1)—

• (a) at any time until the relevant authority grants a subsequent consent; and

• (b) either—

• (i) of the Secretary of State's own volition; or

• (ii) if requested to do so in writing by any person.

• (3) This paragraph applies if—

• (a) the proposed development has not been the subject of a screening opinion; and

• (b) the application was not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations.

• (4) This paragraph applies if—

• (a) the proposed development has been the subject of a screening opinion to the effect that it is not EIA development; and

• (b) the Secretary of State considers that the screening opinion did not take into account information that is material to the decision as to whether or not the proposed development is EIA development.

• (5) If the Secretary of State decides to give a screening direction following a request under paragraph (2)(b)(ii), the Secretary of State must—

• (a) request from the applicant the information set out in regulation 8(3);

• (b) if the Secretary of State considers that sufficient information to make a screening direction has not been provided, notify the applicant of the points on which additional information is required; and

• (c) give the screening direction within 90 days of the date on which the applicant provides sufficient information for the Secretary of State to make a direction.

• (6) Where the Secretary of State considers that, due to exceptional circumstances relating to the circumstances of the proposed development, it is not practicable to give a screening direction within the period specified in paragraph (5)(c), the Secretary of State may—

• (a) in the case of a screening direction being prepared under paragraph (2)(b)(i), extend that period by notice in writing given to the person bringing forward the development which is the subject of the proposed screening direction; or

• (b) in the case of a screening direction being prepared under paragraph (2)(b)(ii), extend that period by notice in writing given to the person who made the request for a screening direction.

• (7) The Secretary of State must state in any notice given under paragraph (6) the reasons justifying the extension and the date when the direction is expected to be given.

• (8) The Secretary of State must send a copy of any screening direction to the relevant authority, or, if the Examining authority has been dealing with the application, to the Examining authority.

Procedure for establishing whether environmental impact assessment is required

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• (1) A person who proposes to make an application for an order granting development consent must, before carrying out consultation under section 42 (duty to consult) either—

• (a) ask the Secretary of State to adopt a screening opinion in respect of the development to which the application relates; or

• (b) notify the Secretary of State in writing that the person proposes to provide an environmental statement in respect of that development.

• (2) A person who proposes to make a subsequent application may, before submitting that application—

• (a) ask the relevant authority to adopt a subsequent screening opinion in respect of the proposed development; or

• (b) notify the relevant authority in writing that the person proposes to provide an updated environmental statement in respect of the proposed development.

• (3) A person making a request under paragraph (1)(a) must provide the following information—

• (a) a plan sufficient to identify the land;

• (b) a description of the development, including in particular—

• (i) a description of the physical characteristics of the whole development and, where relevant, of demolition works;

• (ii) a description of the location of the development, with particular regard to the environmental sensitivity of geographical areas likely to be affected;

• (c) a description of the aspects of the environment likely to be significantly affected by the development; and

• (d) to the extent the information is available, a description of any likely significant effects of the development on the environment resulting from—

• (i) the expected residues and emissions and the production of waste, where relevant; and

• (ii) the use of natural resources, in particular soil, land, water and biodiversity.

• (3A) A person notifying the Secretary of State under paragraph (1)(b) must provide, at the same time as giving notification, the information listed in paragraph (3)(a) and (b).

• (4) A person making a request under paragraph (2)(a) must provide the following information—

• (a) the reference number applied by the Secretary of State to the application for an order granting development consent in respect of which the applicant proposes to make a subsequent application;

• (b) a description of any aspects of the environment likely to be significantly affected by the development which were not identified at the time the order granting development consent was made; and

• (c) to the extent the information is available, a description of any likely significant effects on the environment not identified at the time the order granting development consent was made resulting from—

• (i) the expected residues and emissions and the production of waste, where relevant; and

• (ii) the use of natural resources, in particular soil, land, water and biodiversity.