(P131) Environmental Impact Assessment Screening in London

The Journal of the London Planning and Development Forum, by Christine Mc Goldrick (see end)

The proper implementation of Environmental Impact Assessment (EIA) is being promoted by the Greater London Authority's strategic planners, given its role in many strategic planning applications that are referable to the Mayor and its positive contribution to the effective strategic planning of London. EIA is increasingly recognised as an important aid in the decision making process that helps to achieve more environmentally sustainable development schemes. In the context of assessing compliance with the Mayor's emerging Spatial Development Strategy (the draft London Plan) and his individual environmental strategies e.g. Biodiversity, Energy, Waste, Noise, and Air Quality Strategies, as well as forthcoming supplementary planning guidance on Sustainable Design and Construction, Environmental Statements are often invaluable.

Recent research supported by the GLA (1) into the EIA screening processes and practices in London boroughs reveals that some local authorities appear to be circumventing the EIA Regulations by determining that EIA is not required in cases where it arguably should be applied.

The research particularly highlights the role of discretion and its underlying driving forces in determining whether or not EIA is applied to specific "urban development projects" (in Schedule 2(10) b of the 1999 EIA Regulations) which include for example: the construction of shopping centres and car parks, sports stadiums, leisure centres and multi-plex cinemas.

It is important to establish firstly that discretion can only potentially influence decisions in relation to developments listed in Schedule 2 of the Regulations where EIA may be required whereas EIA is always required for developments listed in Schedule 1. Circular 2/99 (EIA) states that "whilst only a small proportion of developments will require EIA, it is stressed that EIA is not discretionary. If significant effects are likely EIA is required."(p3). Although there is substance in this, paradoxically it is in the determination of what is significant and whose values influence this that discretion can play a role in EIA screening, this is especially so for those cases that fall within the "grey area" between the exclusive thresholds in Schedule 2 of the regulations above which screening must occur and the indicative thresholds in circular 2/99 that give an indication of when EIA is more likely to be required.

By way of example the thresholds for urban development projects can be used to illustrate the grey area. Applications are required to be screened to determine the need for EIA if the size of the development exceeds the exclusive threshold of half a hectare, the key test being the likelihood of significant environmental effects. One of the indicative thresholds where the Government thinks that EIA is "more likely to be required" is when the site area of the scheme is more than 5 hectares. Hence the relatively grey area in between 0.5 and 5 hectares.

Survey of London Boroughs

The research included a survey of all London boroughs that focused on screening procedures, attitudes toward EIA, views on impact significance and the current Regulations. Seventeen boroughs (51%) responded. The findings highlighted an ad hoc approach and inconsistent procedures between authorities, the vast majority having no set screening guidelines. In particular there were differences in the number of officers involved and their specialist expertise, consultation procedures, when screening occurs, and responsibility for the final decision; all factors that mitigate against consistent screening decisions both within and between local authorities.

Best practice recommends that local authorities take the opportunity to raise the issue of EIA early in the planning process, and this could be more widespread. Only 23% (four) of local authorities always carried out screening as a result of pre-application discussions, whilst the remaining 77% (thirteen) only did so occasionally. EIA should ideally begin as early as possible in project formulation, so that it can feed into the evolution of project design. If the need for EIA is considered only when proposals have been finalised, the applicant will be more reluctant to consider alternative options and fundamental changes to the scheme, improve environmental performance or incorporate substantial mitigation measures.

Surprisingly only two local authorities have established guidelines or procedures to screen planning applications. Those guidelines were essentially procedurally based and did not give any indication of levels of impacts that are considered significant or the particular environmental sensitivities within the boroughs.

One local authority's guidance note illustrates a basic misinterpretation of the EIA Regulations and guidance. Acknowledging that the screening and processing of EIA applications are likely to be onerous tasks for the Council, they decided to minimise EIA applications through requiring EIA only when the indicative thresholds in Circular 2/99 are met. The guidance note fails to refer to the key test of the "likelihood of significant environmental effects" that is supposed to be applied to sites above the exclusive thresholds, and thereby effectively predetermines the screening opinions for cases within the "grey area" by interpreting indicative thresholds in the Circular as fixed. The Government intention is that these indicative thresholds should only be used as guide for when EIA "is more likely to" be required.

On the positive side, the research revealed that the majority of respondents view EIA as a useful process, adding value to decision making and resulting in better informed decisions. However, there did appear to be a predisposition towards requesting "informal, supplementary environmental information" rather than Environmental Statements among a proportion of respondents. When asked if a few separate studies such as a transport assessment and an ecological assessment "are adequate for development control purposes as opposed to full Environmental Statements for the purposes of the EIA Regulations," 35% (6) stated they were often adequate, 18% were uncertain, and 47%(8) responded positively, stating that separate studies would be inadequate (see figure 2).

The view held by some planners that this production of individual studies is the application of EIA in all but name, represents a fundamental misapprehension of the purposes of EIA and its benefits. One important purpose of EIA was clearly set out in Lord Hoffman's legal judgment (Berkeley v SOS for the Environment and others), in the House of Lords (July 2000) where planning permission for the Fulham Football Club was quashed because EIA was not applied. Importantly he ruled that information should be presented in the format of an Environmental Statement and citizens should be given the opportunity to scrutinise this (including a non technical summary) and their views on the validity or otherwise of the environmental information should be taken into account in the decision making process. The insistence on supplementary information rather than applying EIA can amount to regulatory avoidance and the by passing of statutory consultation and publicity requirements.

Case studies reveal potential underlying reasons for discretion

A number of case studies in recent years revealed potential reasons for the use of discretion in determining that EIA was not required. In three of the cases, the Baltic Exchange (Swiss Re ) redevelopment, the Fairlop Plain race course and the Seagar Distillery redevelopment, the local authorities concerned originally screened the applications and decided EIA was not required and subsequently the Secretary of State (SOS) issued Screening Directions to the contrary.

In most of the cases, the local authorities acknowledged that there were likely to be impacts, some going so far as to state that these were likely to be "significant," but then going on to state that this information could be submitted as supplementary information and studies, rather than an Environmental Statement. In fact, one Council aimed to make their screening opinion conditional upon the submission of a whole series of separate assessments. Specifically, the unacceptability of this "paper chase" approach is highlighted in the Fulham Football Club case.

The case of Crystal Palace is a classic example of how subjectivity in determining the significance of impacts, the apparent use of discretion, and non decision making, contributed to the avoidance of EIA. This has in turn fueled a vociferous opposition campaign, a series of on going court battles, and European Commission intervention by way of the issue of a formal letter of notice to the UK Government in November 2000. The next stage will be the European Commission's decision on whether the matter will be taken further to the European Courts of Justice.

Discretion appears to be playing a role in evasion of the EIA process in some cases that fall within the "grey area" for a number of reasons which include: political pressure, vested interests of local planning authorities, a lack of understanding about EIA as a process or its benefits, political prioritisation of regeneration and economic benefits, a desire not to slow down the planning process, views that it duplicates existing planning application processes, reluctance to give developers the opportunity to use an Environmental Statement as an advocacy document and to reduce the risk of raising public opposition to projects politically endorsed by the local authority.

It is important to realise that the application of EIA is not synonymous with refusal of planning permission. Preconceived views on the "acceptability" of proposals do not mean that local authorities can choose to override the requirement to make decisions in the knowledge of the likely environmental effects in the context of public debate.

Planning authorities should also be aware that the Secretary of State (SOS) does not consider the need for EIA when considering whether or not to call an application in. Apparently the SOS has only a statutory obligation to consider the requirement for EIA in cases where it is decided to actually call an application in. Therefore, if an authority receives a non-intervention letter, it should not assume that the SOS's view is that EIA is not required.

The main implication of the tendency of some local authorities toward using discretion not to require EIA in a limited number of cases is that the benefits of EIA are forgone and that development projects are delayed by recourse to the courts. These benefits forgone include: the systematic consideration of impacts, their interrelationships, cumulative impacts and alternatives; the incorporation of impact prevention and mitigation into designs; the facilitation of public debate on the significance of the impacts and lastly public scrutiny of Environmental Statements which adds balance to the advocacy approach adopted by some consultants.

Although the majority of local authorities are positively improving their approach to EIA, some appear to remain stubbornly resistant. However, the increasing awareness of all stakeholders, including local action groups largely due to a number of court rulings both in the national and European courts and the European Commission's willingness to rebuke member states when EIA is circumvented, is likely to result in a less cavalier approach to its use in the years ahead. This can only improve EIA implementation and enhance its contribution to effective local and strategic planning in London.

Some Key Recommendations

Local Planning Authorities should seek advice from Consultation Bodies at the screening stage (currently required at the scoping stage only) and the three week statutory period should be extended in recognition of the complexity of screening in marginal cases.

Given that boroughs generally find significance difficult to determine at the screening stage, applicants could make more use of preliminary studies (initial environmental evaluation), which equate to the consideration of significance of likely impacts in broad terms.

Independent guidelines should be produced to help determine the likely significance of impacts even though significance determination depends on the development concerned and the receiving environment. These should be example based, identifying significant impacts resulting from developments of various scales and types within a whole range of environmental contexts and sensitivities.

To promote greater accountability and transparency in screening, both screening directions and screening opinions specifying that EIA is not required should indicate the reasons why, or at the very least, state the considerations that were taken into account in reaching the decision.

Boroughs should take a precautionary approach to screening when deciding in marginal cases, on the basis that if there is substantial uncertainty over severity of impacts, officers should not feel obliged to prove the likelihood of significant effects before requesting an Environmental Statement.

Author Credit: Christine Mc Goldrick is a Strategic Planner in the Greater London Authority's Planning Decisions Unit.

Christine Mc Goldrick highlights that 3 years on from the 1999 EIA Regulations, implementation in London boroughs has been improved but EIA screening could be better.

A quick guide to the terminology:

Environmental Impact Assessment (EIA): the whole process by which information is collected, published and taken into account on reaching a decision on a relevant planning application.

EIA Screening: the process of determining whether or not a given proposal should be subject to EIA.

Exclusive Thresholds: thresholds listed in Schedule 2 of the Regulations for particular types of developments/ projects above which must be screened to determine the need for EIA.

Indicative Thresholds: thresholds in Annex A of Circular 2/99 that indicate when EIA is "more likely to be required,"( although these should only be used as a general guide, the key test being whether or not there are likely to be significant environmental effects).

Key Regulations and Guidance: The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 and Circular 2/99 Environmental Impact Assessment. (DETR).

Figure 1: London Boroughs covered by the research

"The production of a few separate studies are adequate for development control purposes as opposed to full Environmental Statements for the purpose of EIA regulations."

Figure 2: A mixed response on Environmental Statements versus "supplementary environmental studies":

3/12/03 Last updated 3/12/03

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