Environmental impact assessment: do the regulations apply to your project?

In 1985 the EIA Directive (EU legislation) on Environmental Impact Assessment of the effects of  projects on the environment was introduced. It was amended in 1997. The requirements of the Directives are incorporated within UK law through "The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999" and their equivalents for other parts of the country. Not all real estate development projects are covered by the regulations. In particular the regulations do not apply to most small scale development projects. I regularly receive questions from developers who want to know if their project is covered by the regulations and in this article I will describe the process to determine if the regulations apply to a particular project.

As an example we consider a new fifteen storey office block on a 0.4 ha site that currently comprise a non-listed Victorian four storey building and situated in close proximity to a number of grade II and grade II * listed buildings.

The 1999 EIA regulations distinguish between two different categories of development that will require or potentially require to undergo an environmental impact assessment. These developments are described in schedule 1 and schedule 2 of the regulations. Development proposals that would fit any of the descriptions in schedule 1 always require an environmental impact assessment. Schedule 1 developments are generally large infrastructure projects or development that is generally regarded as having a high potential for pollution. Examples of the latter development types include waste management sites and power stations. The proposed development in my example does not match any of the development types described in schedule 1.

Development that is classed as 'schedule 2 development' only requires an EIA to be carried out when it is likely that a significant environmental impact will occur as a result of the development. To determine whether a development is a schedule 2 development is more complex than it is to determine a schedule 1 development. There are three aspects that require to be considered:

1. The descriptions of development categories in schedule 2.
2. The threshold mentioned in schedule 2 for the development category.
3. The presence of any sensitive areas as defined in the regulations.

The development matches the description in Schedule 2, 10(b) Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas. This category covers a wide variety of development types including office, retail and residential development projects.

For a development in this category to become a schedule 2 development its area needs to exceed 0.5 ha, or it needs to be situated in a sensitive area. The footprint of the development area in my development, taken as the red line planning application boundary, is less than 0.5 ha. Therefore, based on this criterion, the development would not be a schedule 2 development.

As I mentioned the next test is whether the development is proposed to take place in a sensitive site. The regulations define a sensitive site as any of the following sites:

• Sites of Special Scientific Interest
• Land to which sub-section (3) of section 29 (nature conservation orders) of the Wildlife and Countryside Act 1981 applies
• Areas to which paragraph (u)(ii) in the table in article 10 of the Town and Country Planning (General Development Procedure) Order 1995 applies
• National Parks
• The Broads
• Properties appearing on the World Heritage List
• Scheduled Ancient Monuments
• Areas of Outstanding Natural Beauty
• European sites within the meaning of regulation 10 of the Conservation (Natural  Habitats etc) Regulations 1994

There are a number of public register available that can be used to determine if the location is a sensitive site. In my experience the "Multi-Agency Geographical Information" database is a very useful starting point to establish this. It can be found on the internet and is commonly know under its acronym Magic.

Assuming that our research has demonstrated that development is not proposed to take place in a sensitive site, it follows that it is unlikely that the proposed development is a schedule 2 development and therefore it is not likely that an EIA is required.

There are two further issues that I need to address here. Firstly, certain activities that are proposed on a particular development have much lower thresholds in schedule 2. I have assumed that these activities do not form part of the current proposed development. It is particularly worth to verify that no fuel is stored in a structure exceeding an area of 0.05ha.

Secondly, in exceptional cases the Secretary of State has the power to direct that a development requires undergoing EIA even when the threshold is not exceeded and the site does not lie in a sensitive area. An example of this was the development of the London Eye. The height, its prominent location within London and the potential to attract large numbers of visitors were all factors that were considered to likely lead to a significant environment impact and therefore an EIA was required, even when the footprint of the development did not exceed the threshold and it is not situated in a sensitive site. This is a rare event, but it should be taken into consideration nevertheless.

Even if the development would be a schedule 2 development it would not necessarily be required that an EIA be carried out. The development would then be screened to determine if a significant environmental impact would likely occur. I will not consider this further here.

Even though it appears that the proposed development does not require an EIA and environmental statement, there are other pieces of legislation that may require the submission of adequate environmental information before a planning decision is made. In particular the legislation around species that are protected at European level, such as bats and great crested newts, can be onerous. This may for instance become an issue where demolition of existing buildings forms part of the development proposals.

Finally the local planning authority has a duty to take into account many other environmental and sustainability issues.  The authority may therefore require a number of studies, statements or reports. These may include a flood risk assessment, an energy statement, overshadowing studies and a wind strength appraisal.

In this article I described the process to determine if a real estate development project falls within the reach of the 1999 EIA regulations. Although in many cases this will a relatively straightforward appraisal, it is recommended to consult a specialist for each of your projects.