With the expectation that the Environmental Impact Assessment (EIA) Directive amendments will be approved in the near future, Chris Tofts of
The EIA Directive (and its transposition) continues to be an area of significant interest to aggregates operators, not only due to the financial and operational commitments it requires, but also the potential for any development consent to be quashed on the basis that the competent authority has not carried out the procedure correctly.
The original 1985 directive was revised in 1997, 2003 and 2009. The European Parliament has adopted amendments to a revised EIA Directive and it is now expected that the Directive will be approved in the near future. Now agreement has been reached it is expected that the revisions must be transposed into national legislation by 2017.
The expressed aim of the revisions is to simplify the EIA process: a laudable aim. An amendment at the beginning of the Directive states: “In many cases administrative procedures became too complicated and protracted, causing delays…,” a statement that many operators will be able to relate to.
Below we look at five amendments that are likely to have an impact on aggregates operators and then consider whether the aim has been met.
1. Monitoring of effects
One of the more common complaints about the operation of the EIA Directive from environmental campaigners is that the reality does not always match the effects anticipated in an EIA. The amendments to the Directive require that if development consent is to be granted, it should include measures to monitor the significant adverse environmental effects.
Operators should in particular note the requirement that where the monitoring indicates the presence of unforeseen adverse effects, provision should be made for appropriate corrective action to remedy the problem, in the form of additional mitigation and/or compensation measures.
This amendment means that it is more likely that operators will be required to enter in to legal agreements to provide further mitigation in the event that greater significant effects on the environment result than were originally envisaged.
2. Competent experts
In the future any environmental report required from an operator will need to be prepared by a competent expert. The competent authority will also need to verify the environmental report with its own, separate, competent expert.
It is for Member States to determine the detailed arrangements for the use and selection of competent experts.
Therefore, aggregates operators considering development which will require environmental reports, will need to ensure that they have sufficiently qualified and experienced personnel to prepare them, or that their consultants are appropriately qualified.
3. Proportionality
There are some changes proposed to Article 5 (which details what an environmental report should contain). This now requires that an environmental report should include “the information that may reasonably be required for making informed decisions…”
However, this does not appear to be an improvement on the existing Article 5(1)(b) in that the information required is now not limited to that information which a developer may reasonably be required to compile, but the information that may reasonably be required for making an informed decision.
This is likely to weaken the hand of an operator who has previously used Article 5(1(b) to argue that it would not be reasonable to ask them to provide such information.
4. Screening
The amendments include a new Annex II.A, listing the information developers may be required to provide in order for a screening opinion to be given.
The text states that: “The amount of information to be provided by the developer shall be kept to a minimum and limited to the key aspects that allow the competent authority to make its decision”. Whilst on the surface this appears to be an attempt to reduce unnecessary collation of information, it cannot hide the fact that this is the introduction of a new step in the procedure.
On the positive side, it can be seen as an opportunity to get the operator’s view on the development across to the Planning Authority first and is not unlike the information that will already be submitted by proactive and well advised operators seeking a negative screening opinion.
The revised directive requires assessment of significant effects resulting from “the cumulation with other existing and/or approved projects”. Such wording appears to exclude other development which is likely to occur but not yet approved. However, the ‘salami slicing’ of a project in order to avoid EIA is still likely to be caught by the Directive.
5. Information in an environmental report
The revised directive sets out new topics in Annex IV which must be considered in the environmental report. These include biodiversity, climate change and resilience to natural and man-made disasters.
Conclusion
The amendments considered above are likely to have a significant impact on aggregates operators when seeking development consents in the future. Whilst there are a number of other provisions which may make the process simpler, the requirement to monitor and then mitigate any unexpected outcomes are likely to represent a real concern for the operators (and their competent experts).
Overall, I do not expect the cost or time invested in the Environmental Impact Assessment process will reduce as a result of these amendments..
Chris Tofts is an Associate in the mining and minerals team at Stephens Scown LLP in the UK. The firm has more than 70 years’ experience representing mining and minerals clients and its specialist team has recently been recognised once again by independent guides to the law Legal 500 and Chambers.
Chris can be contacted on +44 (0)1872 265100 or email %$Linker:
