Matthew Coe, graduate environmental consultant and Chris Rochfort, principal environmental consultant at MWH Global, outline how to avoid the need for EIA.
MWH routinely designs and build projects for water utilities. As statutory undertakers, water utilities benefit from significant permitted development rights under part 13, class A and B of the Town and Country Planning (General Permitted Development) Order 2015. This means that some schedule II projects listed within the 2011 EIA regulations require no planning permission if EIA has been screened out.
Where a local planning authority (LPA) deems that EIA is necessary, MWH has in some cases negotiated with the LPA so that clients do not need to go through EIA and cost and programme implications are avoided. Methods we have used include:
- providing more information concerning potentially significant environmental effects;
- providing mitigation guarantees;
- revisiting design to reduce impacts;
- seeking screening direction from the Secretary of State (SoS).
Providing more information or guarantees on mitigation
In one case, MWH undertook EIA screening for a cross-country water pipeline. The project aimed to reduce abstractions from a nearby water treatment works that were impacting on the quality of a SSSI-designated river.
During design, a route corridor appraisal selected a route passing close to two scheduled monuments and within an AONB, both sensitive sites under regulation 2(1) of the EIA regulations 2011.
The LPA designated the project as EIA development due to the proximity of nationally significant Roman-era archaeology outside the scheduled monument boundary. Further consultation with the LPAs, county archaeologist and English Heritage allowed MWH to understand their concerns, expedite planned geophysical surveys of the area and produce an archaeological strategy, which outlined how intrusive the tunneling construction method would be.
Upon review, English Heritage and the County Archaeologist revised their advice to the LPAs, who then issued a new screening opinion saying that no EIA was required. These mitigation guarantees assured the LPAs that local archaeology would be unaffected or that impacts would be mitigated during construction. In some cases, legal agreements are signed between clients and LPAs to guarantee mitigation and avoid EIA.
An interesting conundrum was raised by the project’s environmental lawyer. As there was no design change, only the provision of further information and guarantees, what becomes of the first screening opinion? There currently exists no provision in the EIA regulations, nor any case law examples, that original screening opinions are automatically superseded unless LPAs explicitly address this in their updated response, which does not always happen. This uncertainty potentially leaves developers vulnerable to judicial review.
Revisiting design
On another water pipeline project, MWH’s design team faced two options on a one kilometre section. These were:
- a direct route along a quiet road with no residential properties, but which passes through an iron age hill fort, part of which is a scheduled monument.
- an indirect route along a busy road, which would require 500m of additional pipe at considerable additional cost, amenity, access and traffic impact.
The first option was selected. It was highlighted that tunneling the pipe underneath the area of archaeological interest would minimise impact and the scheduled area would be avoided.
Despite this, the LPA’s screening response was that the project required EIA. The client preferred to maintain their permitted development rights, rather than incurring delays while completing an EIA. Following meetings with the LPA, design was revisited and the second option was chosen instead. A revised screening request was consequently submitted and this time the LPA said that no EIA was required. In this example, flexibility in design and understanding the LPA’s and client’s position enabled MWH to negotiate out of EIA.
Escalation to secretary of state
Another example is a project to alleviate basement sewer flooding for over 300 properties. The solution included large underground stormwater storage shafts, small kiosks and hard and soft landscaping within two local parks which included a local wildlife site, which were the only suitable large or open areas available in the high density location.
Again, the LPA decided it was an EIA development due to the project’s significant effects on the environment, particularly in terms of pollution and nuisance during construction. It was also concerned that the project would have significant environmental impacts on the site’s ecosystems, including the local wildlife site, and changes to water levels.
MWH considered this an incorrect interpretation of the specific environmental risks, EIA regulations and guidance. Further negotiations with the LPA were also unsuccessful. A screening direction was therefore sought from the SoS. The SoS agreed with MWH that there was no evidence the scheme would have particularly significant impacts and parkland reinstatement would be addressed through the planning process for the above-ground kiosks. EIA was not required.
Conclusion
To conclude, these examples show “EIA development” responses from LPAs need not spell the end of the conversation. Indeed, through careful negotiation, and appropriate escalation if necessary, outcomes can be reached that are satisfactory to clients, legally compliant, and potentially avoid unnecessary assessment work.
