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Proposed changes to the EIA Regulations in Wales

Helen Ashby-Ridgway 14 Sep 2016
Nathaniel Lichfield & Partners (NLP) have studied the Directive, reviewed the consultation and has identified the following key changes to EIA practice of relevance to those in the development industry undertaking EIA: Environmental Statements will be renamed ‘Environmental Impact Assessment Reports (EIA Reports)’; A new requirement to consider whether the project is likely to give rise to significant environmental effects upon climate change and human health; The preparation of the EIA Report is to 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, ‘a competent expert’; The restriction for third parties to make a screening request to the Welsh Ministers to a period of 35 days after a screening opinion has been published on the Local Planning Authority’s (LPA) planning register. Where no screening opinion is published, an unrestricted period is proposed. Welsh Ministers would retain the right to make a screening direction at any time; Increasing the timescale for a LPA to produce a scoping opinion from the current 5 weeks. The consultation seeks suggestions for an appropriate alternative timescale; The EIA Report must contain a description of the reasonable alternatives studied by the developer (for example in terms of development design, technology, location, size and scale) including an indication of the main reasons for the option chosen, including a comparison of the environmental effects; The requirement  to provide a description of the expected significant adverse effects on the environment deriving from the vulnerability of the development to risks of major accidents and/or disasters which are relevant to the project, including measures to prevent or mitigate the significant adverse effects of such events and details of the preparedness for a proposed response to such emergencies; A proposed increase in the consultation period for a submitted EIA Report from 21 days to 30 days; A requirement for the EIA Report to propose monitoring measures of significant effects, where appropriate. It will be at the LPA’s discretion as to what matters to monitor and for how long; Where an EIA application is determined, the decision notice must include (amongst other things), a summary of the environmental information and if the decision is to grant planning permission, a statement that the planning authority is satisfied that the ‘reasoned conclusion’ is still up to date; the ‘reasoned conclusion being considered up to date’ is defined as the planning authority being satisfied, having regard to current knowledge and methods of assessment, that the reasoned conclusion addresses the likely significant effects of the development on the environment. At NLP, our Environmental Assessment service aims to simplify an increasingly complex legislative framework for our clients. We guide our clients through the process of screening, scoping, consultation and production of Environmental Statements (EIA Reports) and also offer specialist inputs to address various elements in the assessment process, while working collaboratively with others as part of a wider EIA team. As a testament to this first-rate expertise NLP is proud to have been awarded an EIA Quality Mark by the Institute of Environmental Management & Assessment (IEMA) and our experienced EIA team has six members who hold Practitioner Membership of IEMA.If you would like NLP to prepare representations on your behalf to the Welsh Government consultation on the proposed changes to the EIA Regulations please contact Liz Evans. The consultation ends on 11 November 2016.  

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Proposed changes to appeals procedures in Wales

Helen Ashby-Ridgway 24 Aug 2016
There has been no rest for the Welsh Government’s planning team this summer with a further consultation now underway following Royal Assent of the Planning (Wales) Act last year. These latest proposed changes relate to appeals and call-in procedures, with a focus on: Ensuring a more proportionate, cost effective and streamlined process; Increasing the speed of decisions; Increasing transparency; and Increasing fairness for all parties. Key proposed changes include: Form and Content of an Appeal 1. The requirement for a full Statement of Case[1] to be submitted to the Planning Inspectorate at the outset, in most cases, instead of the current requirement of 6 weeks after the start date. 2. LPA questionnaires and notification of interested parties to take place within 5 working days of the starting date, compared with the current 2 week timeframe. 3. Representations from the LPA and interested parties to be made within 4 weeks of the start date, compared with the current 6 week timeframe. 4. Final comments on the LPA and interested party comments by all parties to be made within 6 weeks of the start date. 5. The removal of the requirement to agree Statements of Common Ground (SoCG) but they would still be encouraged. Examination procedure 6. The written representations procedure as the default procedure for all appeals or call-ins. Although, the examination method could be tailored to the specific requirements of the appeal or called in application creating the opportunity for multi-mode examinations e.g. part written representations/part inquiry. Inspectors can already decide which examination method to follow. 7. Inspectors to be permitted to request further statements of up to 3000 words on certain matters to seek to avoid the need for a hearing or inquiry where the matter can be clarified in writing. 8. The focusing of topic based sessions by limiting participation in inquiries or hearings to only those invited by the Inspector. 9. New matters could not be raised during an appeal unless it was demonstrated that: the matter could not have been raised at the time the LPA was considering the application; that the matter raised was a consequence of exceptional circumstances; or, the restriction on amendments would not affect any requirement to have regard to the provisions of the development plan or any other material consideration. 10. Changes to an application to be made only where there is a drafting or drawing error and those changes would not affect the substance of the application. Costs 11. Costs to be awarded to parties for written representation appeals where parties are deemed to have behaved unreasonably. 12. Similarly, costs could also be awarded to Welsh Ministers for unreasonable behaviour of the parties involved in the appeal (in order to protect the public purse). 13. An application for the award of costs would need to be made at the earliest opportunity such as at the submission of the statement of case and/or where appropriate within the 4 and 6 week deadlines from the start date. Where an application for costs was necessary to cover unreasonable behaviour during proceedings a statement would also need to be included expressing why the application for costs could not have been submitted at an earlier stage. 14. The Planning Inspectors or Welsh Ministers to be able to award costs to any party in the proceedings even where no application for costs has been made by individual parties. Implications The likely implications for appellants are mostly constructive but would require a greater front-loading of work with limited opportunities to raise new matters at a later stage. The mixed mode appeals should introduce a pragmatic means of dealing with straightforward issues. The most significant proposal would be the removal of the opportunity to make any changes to the appealed scheme. Whilst theoretically this should make the appeal process itself more efficient, overall this may well delay timely development taking place when compared with the current ability for LPAs and appellants to reach an agreement on non-prejudicial changes without the need to resubmit a planning application.The proposal to enable Planning Inspectors or Welsh Ministers to award costs even where no application is made should certainly assist in focusing the minds of all parties in the appeal process. With the front-loading of work for the appeal there is a risk of higher cost awards against LPAs in cases where spurious reasons for refusal are given but subsequently not defended at appeal.Responses to the consultation must be submitted by 4 November 2016. If pursued the proposed changes to the regulations and guidance will be introduced in early 2017.Changes are also proposed to enforcement appeals and standard daily costs for certain circumstances such as examination of local development plans, we can discuss these with you if they are of interest.Please contact Helen Ashby-Ridgway, Associate Director, 02920435880 for any further information.  

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