1. Transitioning Welsh EIA to the amended Directive 2014/52/EU
6 October
2016

2. Speakers
Josh Fothergill - IEMA
Hywel Butts – Welsh Government
You?

4. Outline Welcome EIA Directive Context – Josh
Wale’s EIA Consultation – Owen
Discussions
Process
Refreshments
Quality
Other Issues
Summary & IA News Update - Josh

5. EIA Directive Context Josh Fothergill Policy Lead IEMA

6. Revisions to EU EIA Directive (1985 – 2014)
Time-limit for transposition
85/337/EEC
3 July 1988
97/11/EC – Amendment
14 March 1999
2003/35/EC – Amendment
25 June 2005
2009/31/EC – Amendment
25 June 2011
2011/92/EU
Consolidation
No transposition required
2014/52/EU – Amendment
16 May 2017

7. Overview: Revising the EIA Directive
EC proposals for
revising EIA
Directive
EIA Directive
amendment
2014/52/EU
EC Public Consultation
2010
2012
2014
2013
2009
2011
2016
2017
EU EIA
Effectiveness
Review
New
EIA Directive
Proposal Revised by EU Parliament & Council
Member State
transposition
[by May 2017]
2011/92/EU

8. 2014/52/EU European Commission Goals
Core Rule:
Maintain the level of environmental protection established within the existing EIA Directive
Three Aims to drive Effective EIA:
Harmonisation between Member States
Efficiency to streamline multiple EU assessments & reduce burdens
Quality moving away from a purely procedural focus in EIA laws
Also: Improve consideration of Climate Change and Biodiversity in EIA

9. 2014/52/EU Significant Scale of Change

10. Challenges
Balancing the EC’s goals: Harmonisation, Efficiency, Quality
Lack of definitions in amended Directive (experts, health, reasonable alternatives) = Risk to Harmonisation
Changing words in legislation will not easily erode established culture in EIA practices = Risk to Efficiency
Adverse approach to amendment process by some Member States (monitoring, ecosystem services) = Risk to Quality

11. Transposition - Progress
EU Member States
Complete: Bulgaria, (Poland)
2016: Luxembourg, Cyprus, Slovenia
2017: UK, Sweden, (Poland)
Within UK
Scotland: Consulting now on 8/11 EIA regimes
Wales: Consulting now on T&CP EIA regime
England and Northern Ireland: Awaiting consultations

12. Member Views
“Much of this is already good practice” “Avoid undue burden” “An opportunity to streamline” “How will x,y,z… work in practice?”

13. Avoiding undue Burden
The changing requirements will add / extend tasks…
How do we enable this efficiently?
Local Authority - Process changes (screen, scope, examination)
Developer - Topics (CC & Health) and Monitoring
More complex as: Only T&CP EIA regime consultation

14. Opportunity to… Streamline EIA
Amendments provide context for a change in EIA…
Recognise EIA regulations acting alone could backfire
Co-ordinated EIA and other assessments
EIA Report ‘based on’ scoping opinion
Limiting assessment only to significant effects
Pleased to see: Funding scoping training across LPA & CBs

15. Develop a culture of proportionate assessment across the EIA community in Wales

16. How will xxxxxxx work in practice?
Competent Experts
Screening
Scoping
Monitoring
More complex as: no draft EIA Regulations set out in the consultation

17. Guidance will be crucial - Provides need to work together

18. Hywel Butts Planning Directorate Welsh Government

19. Environmental Impact Assessment
Transposition of Directive 2014/52/EU for
Town and Country Planning
Hywel Butts
Head of Development Management Branch
Planning Directorate
Welsh Government

20. Overview Background to the new Directive 2014/52 Brexit
Consultation on transposition proposals
Other amendments
Your views - Workshop session

21. Background to the new Directive 2014/52/EU
Commission’s Review of the effectiveness of the EIA Directive
Proposal to lighten administrative burdens and prepare for emerging challenges
Negotiations lead to Directive of May 2014
Transposition required by 16 May 2017

22. Transposition so far… 2016 Regulations in Wales
UK wide inter-government cooperation
Stakeholder engagement

23. Brexit Rio Declaration on Environment and Development
The Espoo Convention
The Aarhus Convention

24. Consultation E
Proposed changes to how Environmental Impact Assessment applies to Town and Country Planning
Responses by 11/11/2016

25. Areas with little discretion
Examples
Introduction of more specific information that developers will have to provide at the screening stage (Annex IIA; Art.4(3))
New phrases, e.g. Human health (Annex II; Art 4(3))
Information included in the ES “a description of the reasonable alternatives studied by the developer” Includes alternatives including re: project design, technology, location, size and scale (Annex IV, para.2)

26. Areas with little discretion od
Our proposals
The use of ‘Copy out’
The role of guidance

27. Co-ordination od
Provide coordinated and/or joint procedures where projects fall to be assessed simultaneously under the EIA, Habitats and Birds Directives (Directives 2011/92/EU, 92/43/EEC and 2009/147/EC respectively)(Art. 2(3))
The option to include other Directives, such as Water Framework, IED, Waste Framework, Seveso (Art. 2(3))

28. Co-ordination od Our proposals Co-ordinated not joint assessment
What should we co-ordinate:
Screening?
Scoping?
The environmental information?
The decision?
Single and multi regime consents

29. Consultation and participation
Article 6(2) requires the public to be informed electronically of the application and how to participate in the decision making process
Article 6(5) requires that the relevant information (application and ES) is also available electronically through at least a central portal or easily accessible points of access
Article 6(7) has required that the public consultation on the ES should last for at least 30 days

30. Consultation and participation
Our proposals
The LPA to publicise and make the application and ES available online
Paper and electronic copies to be submitted to help achieve these processes

31. Monitoring of significant effects
The decision to grant development consent should include, where appropriate, monitoring measures (new Art. 8a(4))
Member States have freedom to determine the procedures regarding the monitoring of significant adverse environmental effects (new Art. 8a(4))

32. Monitoring of significant effects
Our proposals
Impose a general requirement on the LPA, or Welsh Ministers to include monitoring measures where appropriate, leaving it to their discretion as to what factors should be monitored and for how long
Use the existing system of planning conditions and obligations
The need for proportionality

33. Conflict of interest and functional separation
Competent authorities perform the duties of the EIA Directive in an objective manner and do not find themselves in a situation giving rise to a conflict of interest (New Art. 9a)
Where the competent authority is also the developer there shall be an appropriate separation between functions (New Art. 9a)

34. Conflict of interest and functional separation
Our proposals
Existing provisions.
Clarify when any authority has a duty under the EIA Regulations they must take any steps to ensure they do so in an objective manner
Provide where the developer and the relevant authority are the same person, the relevant authority must ensure a functional separation between those persons seeking development consent and those responsible for determining whether development consent should be granted

35. Penalties and enforcement
The 2014 EIA Directive requires that Member States shall lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive. The penalties thus provided for shall be effective, proportionate and dissuasive (New Art. 10a)

36. Penalties and enforcement
Our proposals
Provision of false information
If someone intentionally provided false or misleading information, intending by doing so to make a gain, this would constitute the offence of fraud by false representation. Fraud is covered by criminal law

37. Penalties and enforcement
Our proposals
Unlawful development
Reinforce the existing caselaw through an explicit duty on LPAs to consider if the requirements and objectives of the EIA Directive have been met when they are considering taking enforcement action

38. Competent experts
The developer must ensure that their ES is prepared by competent experts (Art.5(3)(a)); and,
The competent authority ensures that it has, or has access as necessary to, sufficient expertise to examine the ES(Art.5(3)(b))

39. Competent experts Our proposals
The ES must be prepared by persons who by virtue of their qualifications or experience have in the opinion of the competent authority sufficient expertise to ensure the completeness and quality of the ES

40. Competent experts Our proposals
Require the competent authority to have access to sufficient expertise to examine the ES
In house expertise or external ‘bought in services’ if required

41. Other amendments Third party screening requests Scoping timeframes
Purchase notices under Section 141 of the TCPA

42. Your views….. Consultation at www.gov.wales/consultations/
closes: 11/11/2016

43. Insert Owen’s Slides here…

44. Ice Breaker My biggest concern is…

45. Discussion 1
EIA Process Changes, e.g.
Screening
Scoping
Monitoring

46. Refreshments

47. Discussion 2 EIA Quality Changes, e.g. Experts & Expertise
Joint / Co-ordinated Assessments
New Topics
Annex 4: Reasonable Alternatives

48. Discussion 3
Other Issues

49. Summary & IA News Update

50. Thank You
Josh Fothergill E: