Identifying the right environmental impacts - National Infrastructure ...

Identifying the right environmental impacts Advice note seven: Environmental Impact Assessment, screening and scoping Introduction In October 2009, the Planning Act 2008 (the Act) established a new independent body, the Infrastructure Planning Commission (IPC), which became responsible for considering and making decisions on significant infrastructure planning applications from March 2010. The IPC operates within the statutory framework prescribed in the Act and relevant secondary legislation including the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (the EIA Regulations). The Environmental Impact Assessments (EIA) Regulations implement the EIA Directive1 and apply to all nationally significant infrastructure projects (NSIPs) which require development consent under the Act.

1 C ouncil Directive 85/337/EEC – assessment of the effects of certain public and private projects on the environment as amended by Council Directive 97/11/EC

Identifying the right environmental impacts August 2010

The EIA Regulations impose procedural requirements for carrying out EIA on certain NSIP proposals. For example, NSIPs such as nuclear power stations always require EIA2. Other NSIPs, such as wind farms, only require EIA if they are likely to have significant effects on the environment by virtue of their nature, size or location3. The role of the IPC under the EIA regulations includes: • ‘Screening’ proposals to determine whether they are EIA Developments4 • ‘Scoping’ proposals to advise the applicant what information should be provided within the Environmental Statement (ES)5 – this involves seeking views from ‘consultation bodies’6 • Facilitating the preparation of environmental statements by notifying consultation bodies about their duty to provide information and informing the applicant7 • Evaluating environmental information in the ES and any representations made about the environmental effects before making a decision • Publicising the IPC’s screening and scoping opinions8

2 A ll developments under Schedule 1 of the EIA Regulations require an ES. 3 The IPC must apply a sensitivity assessment (set out in Schedule 3) to determine if the proposal is EIA development. 4 EIA Regulations 6(1a) 5 EIA Regulations 8 6 For definition of “consultation bodies” see EIA Regulations 2(1) a-c and refer to the IPC’s Advice Note 3 – Scoping Opinion Consultation. 7 EIA Regulation 9(1a-c) 8 EIA Regulations 22(1&3)


• Publicising any decision (whether made by the IPC or the Secretary of State) in relation to an application which has been accompanied by an ES9. This document aims to provide advice on two elements of the EIA process during preapplication, namely screening and scoping. Consideration of environmental information in the Development Consent Order (DCO) process The EIA Regulations state that the IPC may not grant development consent unless it has first taken account of the ‘environmental information’10. There are two important issues for the applicant to consider prior to submitting a DCO application. Firstly, the IPC will not accept an application if the supporting ES is considered inadequate11 and secondly, the IPC will not accept an application if it is deemed to be EIA development (explained further below) and it is not accompanied by an ES12.

9 EIA Regulation 23(2) and (4) 10 EIA Regulations 2 & 3(2) – ‘environmental information’ means the environmental statement, any other or further information, any representations made or duly made about the environmental effects of the development or associated development. 11 EIA Regulations 12(5) 12 EIA Regulations 12(2)

Before submitting your DCO application Prior to making an application for an order granting development consent (DCO) and carrying out pre-application consultation13 the applicant must decide whether the proposal is EIA development. The proposal will be EIA development if: • The applicant notifies the IPC that it intends to provide an ES (this is known as a Regulation 6 notification)14 • The IPC adopts a screening opinion to the effect that the proposal is EIA Development15 • The Secretary of State directs that it is EIA development • The proposal falls within Schedule 1of the EIA Regulations. There is no prescribed form for a Regulation 6 notification but any document submitted to the IPC (such as an email or letter) should state clearly that it is a Regulation 6 notification. On receipt of a Regulation 6 notification, the IPC will contact the consultation bodies16. This is known as a Regulation 9 notification17. This process facilitates preparation of the ES in respect of the proposed development and the applicant should therefore notify the IPC at a point when there is certainty about the 13 Required under s42 of the Act. 14 EIA Regulations 6(1b) 15 EIA Regulations 4(2)(b) 16 informing them of their duty to provide information to facilitate preparation of the ES (EIA Regulations 9(1a)) 17 EIA Regulations 9(1b) – the IPC must also send a Regulation 9 Notification to consultation bodies where the IPC or the Secretary of State has given a screening opinion or direction to the effect that the proposal is EIA development – EIA Regulations 9(2b)


scope of the development, any associated development and, if identified at that time, any preferred technological solutions, routes or layouts. At the same time or soon after contacting the consultation bodies, the IPC will let the applicant know which of the consultation bodies were sent a Regulation 9 notification. In some instances, depending on individual circumstances, the applicant may wish to include the Regulation 6 notification with the scoping request. Screening thresholds for EIA developments The EIA Regulations mainly apply to large scale developments and where there is obvious potential for environmental effect. This could apply to the majority of NSIP projects. However, there will be instances where the IPC will need to consider smaller schemes and apply a sensitivity test to determine if the development is EIA. The EIA Regulations identify two classes of development where EIA must be carried out: • Schedule 1– projects for which EIA is mandatory e.g. ‘Thermal Power Stations’ with heat output of 300 megawatts or more, and ‘Nuclear Power Stations’ (no threshold applies).

• Schedule 2 – projects for which EIA is required if it is likely to have a significant effect on the environment, by virtue of its size, location and characteristics. Schedule 2 of the EIA Regulations provides a list of development descriptions18. Thus, EIA is required for any NSIP which falls within one of those descriptions if it is likely to have a significant effect on the environment. Schedule 2 does not include applicable thresholds and criteria (unlike the Town and Country Planning (Environmental Impact Assessment) Regulations 1999). Therefore, when screening developments to determine whether EIA is required the IPC must use the relevant ‘selection criteria’ prescribed in the EIA Regulations19. The development categories or description of projects outlined in Schedule 2 should be taken to be interpreted widely and are not open to narrow definition20. Screening General description If the applicant has not notified the IPC that they intend to submit an ES, they must request that the IPC adopts a screening opinion in respect of the proposed development.

18 ...including, for example, wind farms and overhead cables. 19 EIA Regulations 7 (Schedule 3) 20 Case Law – the European Court of Justice has held that Schedule 2 developments should have a ‘wide scope and broad purpose’ (Kraaijveld (Dutch Dykes) Case c-72/95)


A ‘screening opinion’ is a written statement from the IPC21 giving an opinion as to whether development (including associated development) is EIA development. In other words, development that is likely to have significant effects on the environment by virtue of its size, nature or location. The broad intention of requesting a screening opinion is so that the applicant can obtain a clear view from the IPC on the need for EIA, well before they reach the stage of submitting an application for DCO. It is important to note, for timing purposes, that it is not possible to carry out formal pre-application consultation under Section 42 of the Act until a Regulation 6 notification or a screening request has been made to the IPC22. Following the submission of a screening request the IPC must issue its screening opinion within 21 days of receipt of a valid request from the applicant23. The EIA Regulations allow extensions to the 21 day period if the IPC considers that it has not been provided with sufficient information to adopt an opinion. The screening opinion will then be made available for public inspection on the IPC’s website.

21 ...or the Examining Authority, if the application has been accepted for examination – EIA Regulations 6(7a) 22 EIA Regulations 3(1) and 3(2) 23 EIA Regulations 6(6)

If an EIA is required, the IPC will provide the applicant and Secretary of State with a written statement giving full reasons for its decision24. Although there is no statutory requirement to do so, if the IPC decides that EIA is not required it will nonetheless provide the applicant with reasons for its decision. Secretary of State direction At any time before a DCO is made the Secretary of State is able to issue a screening direction25 if: • An application for a DCO is submitted without an ES, and a screening opinion had not previously been issued by the IPC • The Secretary of State considers that the IPC’s screening opinion (to the effect that development was not EIA development) did not take material information into account. How to request a screening opinion (criteria under Schedule 3) As a minimum requirement a screening request must26 be accompanied by: • A plan sufficient to identify the land (a red line boundary should identify the location of the development and any associated development) • A brief description of the development and possible effects on the environment • Any other relevant information to support the request.

24 EIA Regulations 6(7c) 25 EIA Regulations 5(1) 26 EIA Regulation 6(3)


The IPC’s screening opinion will be based on relevant selection criteria set out in Schedule 3 of the EIA Regulations. Schedule 3 lists factors that should to be taken into account when determining whether a project is EIA development and therefore should also be considered by the applicant when making a request to the IPC. It is possible that the applicant will not have full knowledge of the development and the local area when submitting a screening request. It should nonetheless provide sufficient information to enable the IPC to use the evaluation criteria set out in Schedule 3. To assist the IPC it would be helpful if information or representations submitted with the screening request were categorised using the relevant criteria outlined in Schedule 3 namely: 1. Characteristics of the development – including the size of the development, an awareness of any cumulative impacts from other developments in the area, use of natural resources, waste production, pollution and nuisance. 2. Location of the development – highlighting environmental sensitivities within the geographical area, having regard to the existing land use, regenerative capacity, paying particular attention to designated areas, population density, landscape, cultural heritage and archaeological features.

3. Characteristics of the potential impacts – the above two categories must have regard to the extent, transfrontier nature, magnitude, probability, duration and reversibility of the impacts.

The screening request (together with any plans submitted with it) and the IPC’s screening opinion will be made available for public inspection and will be placed on the IPC’s website.

Applicants should confirm whether any environmentally sensitive areas of land are affected and to what extent, or should explain why this information is not available27.

Further screening decision – identifying additional information

In order to judge the likelihood of significant effect of a proposed development, the IPC would consider the following helpful in making a screening opinion: • A drawing and full description of the land use within the red line boundary • Photographs of the site and any sensitive receptors such as adjacent properties, designated sites, and ideally a photomontage showing any visual constraints from strategic locations • A drawing to show planning constraints and designated areas on and around the site, such as national park or historic landscapes • Ordinance Survey (OS) grid references for the proposed centre point of the site or start and finish points of any route corridors. The IPC may also request a site visit prior to adopting a screening opinion, to be arranged within the timescale of 21 days.

27 EIA Regulations Schedule 3 refers to land types in 15(c) (i) to (viii)


It is possible that additional information about the effects of the development may become apparent during the preapplication phase. This may occur if the scope of the development changes since the original screening opinion was made or if new information becomes available that was previously unknown. For example, identification of unregistered contaminated land or protected species in the vicinity of the proposal. The applicant should share this information with the IPC and, if the information is material, the IPC will invite the applicant to submit a fresh screening request. Scoping General description Before making an application for a development consent order, the applicant has an opportunity to ask the IPC for their formal opinion on the information to be included in the Environmental Statement – a ‘scoping opinion’.

The IPC must adopt a scoping opinion within 42 days of receiving a scoping request or, where relevant, in combination with adoption of a screening opinion28. If the IPC considers that it has not been provided with sufficient information to adopt an opinion it must request further information29. The scoping opinion will be made available for public inspection and will be placed on the IPC’s website. Applicant’s scoping request When making a request for a scoping opinion the applicant must provide as a minimum the following information30: a) A plan sufficient to identify the land The scoping request should take place at a point when there is some certainty about the development. This is because the purpose of scoping is to identify the information to be included in an ES when it is proposed to make an application for an order granting development consent. The plan should include a ‘red line boundary’ defining Site and areas of ancillary/associated development. This is required information for the IPC to understand the area affected and its surroundings. Details within the plan should also, where possible, highlight infrastructure, land use, topography and key environmental features31.

28 EIA Regulation 8(6) 29 EIA Regulation 8(5) – the 42 day period will be start again on receipt of the information requested by the IPC. 30 EIA Regulation 8(3) 31 It would be helpful if applicants provided postcode and OS grid references to identify the location of the land. This will assist the IPC when identifying the relevant consultation bodies.


In Wales, associated development or development not integral to the NSIP cannot be consented by the IPC as part of the DCO, although any cumulative or indirect effects should still be assessed as part of the EIA. b) A brief description of the nature and purpose of the development and of its possible effects on the environment The scheme should be defined in sufficient detail in the scoping report (see below) so that a robust opinion can be undertaken. Any associated development required off-site should also be identified. Information on the likely effects and potential significant impact must be clearly set out for the IPC to make a judgement on the information which should be included in the ES. c) Such other information or representations as the person making the request may wish to provide or make This information may take the form of a scoping report – see below. This is an opportunity for the applicant to demonstrate that it has considered the relevant information and potential environmental impacts, as far as reasonably practicable at the stage of submitting a request.

If the requirements have not been met the IPC will request the applicant to submit additional information. The 42 days will recommence following receipt of the subsequent information. The applicant’s scoping report Although it is not a mandatory requirement it is common practice for an applicant to provide a scoping report as part of the formal request for a scoping opinion. It is a key document that provides a clear idea of the issues to be scoped into the ES (or indeed scoped out) and assists in development of a robust EIA. Ideally the scoping report should provide: • A description of the scheme or proposal • Interpretation of the site settings and surroundings • Outline of alternatives and methods used in reaching a preferred option • Results of desktop and baseline studies where available • Methods to predict impacts and the significance criteria framework • Mitigations and residual impacts to be considered • Key topics covered as part of the scoping exercise • An outline of the structure of the proposed ES.

The scoping report should identify all the issues to be addressed in the ES in sufficient detail not to be misleading or ambiguous32. The report should also make clear what topics have been scoped out and for what reason. It is expected that applicants will have carried out an initial assessment or desk study investigation to identify possible environmental effects, their significance and any other issues identified as part of this process considered to be relevant. The applicant may wish to consider highlighting in the scoping report where dialogue with key stakeholders has informed the scope of the proposed EIA and guided their decisions on the alternatives considered33. The applicant should be confident that it has outlined the main elements of the development likely to have a significant environmental effect. Where there is uncertainty, the applicant should provide as much detail or assume the worst case i.e. maximum height of a building or feature so that the IPC can address this in the scoping opinion.

32 It is not sufficient or appropriate to simply suggest that the ES will provide an assessment of the impacts of the project as the scoping request should include as a minimum a brief description of the possible environmental effects. 33 Further information will be provided in the ES.


The IPC requires six hard copies of the scoping report, and one further copy on disc. The electronic version should be a single file including all appendices and figures. To facilitate the consultation process, the report will be posted on the IPC website where the consultation bodies can view and download an electronic version of the applicants scoping report. The applicant may wish to consider setting out in the scoping report whether any European or internationally designated nature reserves are likely to be significantly affected by the proposed development. If so, the applicant should, as a separate exercise, provide sufficient information with the application to enable an appropriate assessment to be carried out by the IPC34. Determinations on both the appropriate assessment and DCO application will be undertaken during the examination process. Consulting on the scoping request Before adopting a scoping opinion (and/or on receipt of a Regulation 6 notification), the IPC has a duty to consult the ‘consultation bodies’35. The ‘consultation bodies’, as defined in EIA Regulation36, are bodies prescribed under s42(a) of the Planning Act 2008 and bodies prescribed by the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009. 34 IPC Guidance Note 1: Pre-application Guidance. 35 EIA Regulations 8(6) – The IPC must also identify the same consultation bodies on receipt of a Regulation 6 notification. 36 EIA Regulations 2(1a-c)


The IPC has provided advice on the definitions of consultation bodies which can be downloaded from its website. To ensure all relevant statutory consultees are correctly identified the scoping request should identify the location of the development, the preferred route(s) and/or location for any associated features. This could be supported by providing OS grid references and postcode addresses where relevant. Consultation bodies have 28 days to respond with any comments, stating either the information that they consider should be included in the ES or that they do not have any comments. Any responses received after the deadline will not be considered within the scoping opinion but will be forwarded to the applicant for consideration at a later date. It is the IPC, and not the applicant, who has a statutory duty to consult before adopting a scoping opinion. However, this does not preclude the applicant from undertaking their own informal consultation with the statutory consultees, or indeed other interested parties to inform the scoping report37. The IPC recommends, however, that the applicant carefully considers the timing and nature of any non-statutory consultation exercise to ensure that there is no confusion with the IPC’s formal scoping consultation.

37 For example, applicants may identify and consult on preferred sites or solutions prior to requesting a scoping opinion.

If the applicant submits a Regulation 6 notification with the scoping request, the IPC will, as explained, issue a Regulation 9 notification and inform the applicant.

The IPC will also undertake its own analysis of the matters addressed by the applicant and use professional judgement and experience.

Although it is not a statutory requirement, the IPC welcomes advance notification prior to submitting a formal scoping request and recommends that notice of ten working days is given. This will enable the IPC to begin identification of the relevant consultation bodies.

It is likely that the IPC will visit the site of the proposed development either alone or request attendance from key statutory bodies and the applicant to help make an informed decision prior to issuing its opinion.

The IPC’s scoping opinion The EIA Regulations enable an applicant, before making an application for an order granting development consent, to ask the IPC to state in writing its formal opinion (a ‘scoping opinion’) on the information to be provided in an ES. The scoping opinion sets out what the IPC considers should be included in the ES. In preparing the scoping opinion the IPC wwill take into account: • The specific characteristics of the particular development • The specific characteristics of the development of the type concerned • The environmental features likely to be affected by the development38 • Responses from consultation bodies received within the statutory deadline39 • Relevant legislation, guidelines and best practice in the development of scoping reports.

38 EIA Regulations 8(9) a-c 39 EIA Regulations 8(11)


A copy of the scoping opinion will be published on the IPC’s website.

Further information If you have any queries regarding the Environmental Impact Assessment, please contact the IPC on: Email: [email protected] Telephone: 0303 444 5000 Web: www.independent.gov.uk/infrastructure Identifying the right environmental impacts August 2010