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Drones, airports and an already constrained airspace: are the latest government proposals enough?
Last week, for the second time in less than a month, flights at a major London airport were halted by drone activity. On 8th January flights out of Heathrow Airport were suspended for over an hour, following drone sightings. Between 19th and 21st December, the runway at Gatwick Airport was closed for nearly 36 hours after drones were reported over the airfield, with flights unable to take-off or land. At Gatwick, as the world’s busiest single-runway airport and on one of its busiest days of the year, there were estimates of 140,000 passengers that were due to use the airport being affected. The media, aviation sector and public have all watched with interest. Malicious use or otherwise, this is clearly a very serious ongoing issue whereby substantial drones have been used to bring about the temporary closure of two major international airports. Questions have been raised: why was it apparently so easy to shut a British airport with a drone, what controls are there to avoid it happening in the future, and can drones actually co-exist with existing operations in our airspace? To add to the drama, the Heathrow Airport drone sighting followed only days after announcements by the Secretary of State for Transport, Chris Grayling, of plans for further drone regulation.  In a previous blog of June last year, I set out the current policy and regulatory framework and explained new laws for drone operators. Announced in May 2018, the new laws came into force in part from July 2018 with the remaining provisions coming into force on 30 November 2019[1]. At the time of announcing the new laws, Government said that these new measures, alongside an upcoming draft Drones Bill, would be the first step in setting the UK on a path to be a global leader in the drones use, tackling misuse to build public confidence in drone technology and encourage positive, innovative drone use in the UK – stating ‘ensuring drones are being used safely will pave the way for the devices to play an increasingly important role in society, and demonstrating that the industry can operate safely will be key to its advancement’. So, what’s next for government to ensure this societal and safety objective – and within the context of these drone incidents? Last summer, Government published a consultation paper ‘Taking flight: the future of drones in the UK’, seeking views on proposed legislation regarding the use of drones. Government also released a Drones and Other Unmanned Aircraft Bill impact assessment. The consultation period ran from July to September 2018 and detailed a number of proposed policies, including: a minimum age requirement for operators for small unmanned aircraft; whether the 1km flight restriction around protected aerodromes is sufficient; proposals to mandate and regulate a Flight Information and Notification System (FINS) as part of future unmanned traffic management and airspace modernisation programme; the powers required by enforcement bodies in order to properly police drone use and penalise incorrect use; and counter drone technology system proposals. The consultation also looked ahead on how counter-drone technology could be used as a means of addressing the potential threat malicious misuse of drones can pose; and the estimated growth in numbers of commercial drones in the UK over future years. On 7th January, Government published its response to this consultation. The response outlined government’s decisions, in particular, to legislate to give the police greater powers to tackle drone misuse, including the power to issue on the spot fines, and to better protect airports by extending the area around airports and runways in which drones are banned. There will be new powers for the police to order an operator to ground a drone if it’s deemed necessary. The police will also be able to seize drone parts, to prove the drone has been used to commit a criminal offence. This all builds on the new laws announced last year. The Heathrow drone sighting occurred the day after this government announcement, reinforcing just how important these new measures are and the need to implement them into legislation as soon as practicably possible. By the end of the week, the Aviation Minister, Baroness Sugg met UK airport bosses to discuss the technology already in use and how airports can strengthen their defences. Government has now said that it is considering implementation of military-grade anti-drone equipment at all major UK airports, as well as other critical infrastructure such as power stations and prisons. However, cost will no doubt be an issue. In the aftermath of the Gatwick drone incident, it was reported that the airport installed a £1million protection system, comprising 360-degree radar and thermal imaging systems, as well as a radio jammer. An airport’s security ‘fence’ will no longer be just the standard 1.8m chain link fence around an airport boundary. While big airports like Gatwick and Heathrow may be able to meet the cost of several million for drone protection, smaller operators will not have that luxury, potentially simply shifting the problem to the places that are less able to deal with it. Are these plans enough? Until now, Government has followed a light touch approach and the only legislation that has so far been passed focuses on regulating the drone user. Will this latest round of proposed regulation, combined with that announced last year, provide sufficient checks and controls to mitigate against another Heathrow/Gatwick drone incident? The Aviation Strategy Green Paper consultation ‘Aviation 2050 — the future of UK aviation consultation’, which commenced in December 2018, and the House of Commons 2nd reading of the Drones (Regulation) Bill 2017-19, which is expected sometime this year, should build on this work to date. As drones continue to play an increasingly important role in our society there will be pressures placed on our airspace and there is a growing need to understand how current users and new users (drones and other unmanned aircraft) can co-exist, and co-exist in an already constrained environment. The potential of drone technology to aid the way we live, work and play is wide-ranging, offering so much more than solely a recreational application. The Heathrow/Gatwick incidents must not prejudice its future. What is certain is that regulation and policy must continue to play catch-up, and then in consultation with industry, anticipate innovations in advancing technologies; safety must continue to be its focus. This includes aerodrome safeguarding and facilitating an airspace that can benefit all. Failure to do so will likely lead to another airport shutdown, or at its worst, a major aviation disaster.   [1] http://www.legislation.gov.uk/uksi/2018/623/contents/made Announced 30 May 2018. In force in part from 30 July 2018 with the remaining from 30 November 2019, in an amendment to the Air Navigation Order 2016 (The Air Navigation (Amendment) Order 2018.  

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Mitigation Matters for EIA Screening

Mitigation Matters for EIA Screening

Liz Evans 11 Jan 2019
A benefit of the current EIA Regulations is the ability to include mitigation at the screening stage to ensure that EIA is undertaken only for those projects that are likely to have significant effects on the environment. Therefore, if it can be demonstrated that the proposed development includes measures to avoid, or prevent, what might have otherwise been significant environmental effects, EIA is not required. Lichfields has successfully taken this approach to EIA screening opinion requests, committing to standard mitigation such as a Construction Environmental Management Plan, Landscape and Ecology Management Plan etc, as well as project-specific mitigation measures such as the installation of a new Sewage Treatment Plant and a Landscape Strategy that responds to particular species within and around a site. Whilst this can justify that EIA is not required, in order to reach this point it may be necessary to frontload assessment work to establish a robust evidence base. This can be challenging to early project budgets, although it should not generate abortive work, as standalone technical reports will likely still be required on specific issues. Should prior survey work not be possible a ‘worst-case’ scenario could be adopted, although this may commit the project to mitigation over and above what is necessary. Ultimately, however, a commitment to mitigation measures at the EIA screening stage can overcome the requirement for EIA to be undertaken for a project. Recently the Secretary of State successfully defended a legal challenge against his decision that the redevelopment of a disused sports complex was not EIA development[1]. The Claimant, a local resident, submitted three challenges, one of which was that “The Defendant placed undue reliance upon conditions in an attempt to remedy the adverse environmental effects which were likely to arise from the proposal”. In order for that proposal to not comprise EIA development all parties involved agreed that a contaminated land condition would need to be attached to any grant of planning permission, requiring further land contamination investigation(s) to be undertaken and approved by the Council prior to the commencement of development, with subsequent measures/mitigation/validation as required. The screening opinion recognised that there were concerns with contaminated land and that there was moderate risk from ground gas and the potential for pollution to surface and groundwater. A key question for the Court was whether the development would be likely to have significant effects on the environment. In defining this term the judgement refers to past rulings where ‘likely’ is real risk and not probability, although it is acknowledged that an exercise of judgement or opinion is still involved. It is the decision maker’s role to judge whether the development is likely to have significant environmental effects. In this case the ruling found that the challenge was unsupported by evidence, given that the Secretary of State’s screening direction assessed the risks and there were no objections raised by the Environment Agency to the Geo-Environmental Ground Investigation report. It was ruled that the Claimant did not establish an arguable justification that these conclusions were wrong. Whilst this case was considered against the superseded 2011 EIA Regulations (which did not specifically refer to the application of mitigation at the EIA screening stage) the current EIA Regulations do allow for this, which arguably strengthens the role of mitigation in determining whether a project comprises EIA development. The proposed mitigation should, however, be supported by evidence to allow the local planning authority to reach a reasoned conclusion on the need or otherwise for EIA and to ensure that the applicant is not committing to overly onerous and potentially costly mitigation in order to minimise the risk of challenge. [1] Kenyon, R (On the Application Of) v Wakefield Council & Ors [2018] EWHC 3485 (Admin) (18 December 2018)  © Cultura Creative (RF) / Alamy Stock Photo

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