Improved public involvement in EIA: UK still lags behind in transposition.

The deadline for transposition of the new public participation arrangements for EIA passed on 25th June, but with no fanfare in the UK. This was unsurprising, given that we were still out to consultation at the time! (The ODPM went out to consultation in March with a response deadline of 6th June. In Scotland, the consultation paper was only issued on 12th May, with a response deadline of 5th August.) In the absence of transposing regulations, the UK is once again in breach of its EU obligations, says Barry Love of law firm Semple Fraser.

The changes were introduced by the Public Participation Directive (2003/35/EC) ("PPD"), which in turn seeks to implement, across the EU-25, certain provisions from the Aarhus Convention. The new aspects feed, throughout, into the EIA process, from advertising the application, all the way through to a post-decision challenge (which is made much easier).

Therefore, unless development consent was issued before 25 June 2005, it is likely that the new requirements will have to be applied both to new applications submitted after that date, and also to undetermined applications submitted before that date.

Pre-consent decision

The pre-25th June position was that the public had to be informed of the fact that a planning application for an EIA project had been submitted, and to be given the chance to examine and comment upon the environmental information submitted to the planning authority.

Now, though, these rules have tightened substantially and become more detailed. The public now require to be:-

· informed either by public notice, or other suitable means (e.g. electronic media)
· informed "early" in the process, and at the latest (sic), as soon as information can reasonably be provided
· informed of all of the following matters:
· that development consent has been applied for
· that the project is subject to EIA
· that, if applicable, the project is likely to have an impact on another Member State
· which 'competent authority' will take the decision on the planning application
· from whom relevant information can be obtained
· to whom comments or questions can be submitted
· details of the time schedule for transmitting comments or questions
· the nature of possible decisions, including draft decisions
· what environmental information is available
· how and where that information can be accessed
· what detailed arrangements apply for assessing the public responses (e.g. will there be written submissions, or a public enquiry)

Having duly informed the public, there is then an obligation to make sure that the public are given "early" and "effective" opportunities to participate, and to allow them to express comments and opinions prior to the planners taking a decision.

Nor can these procedures be rushed through or conjoined, as there have to be "reasonable time-frames" for, and between, these different phases.

Post-consent decision

Even after the planners have decided to grant or refuse the application, it's necessary for the public still to be kept fully apprised, with transparency guaranteed. The public must be:

· informed of the fact that the application has been granted or refused
· informed of any conditions attaching to the consent
· informed of the main reasons and considerations on which the decision has been taken
· provided with a description of the main measures which have been imposed in order to avoid, reduce, or offset the major adverse effects.
· told about how they may challenge the decision

Review and Challenge

The new rules give certain members of the public the right to challenge the decision. To make use of these new procedures you must show that you have a sufficient legal interest to mount a challenge, or (if the Member State requires it) that your rights have been impaired by the decision. It is for the Member State to decide what constitutes a sufficient interest BUT this is to be determined with the aim of giving the public wide 'access to justice'.

There is also a far-reaching addition: Environmental groups (if they meet certain, relatively undemanding, criteria) are deemed to have an interest in the decision-making procedures, and deemed to have rights capable of being infringed.

At present, European jurisprudence declines, by and large, to give legal standing to environmental groups unless they have certain attributes, peculiar to them, which cause them to have a particular interest in an environmental decision.

These new provisions herald a shift away from those traditional constraints, towards a more open challenge procedure, consistent with the drive towards improved access to justice under the Aarhus Convention.

The sort of review which can be demanded is, first, an administrative review (if local laws provide for it) and then a formal review procedure in court (or some other independent and impartial tribunal) to look again not only at the procedural legality of the decision, but also at the substantive legality.

Not only that, but the new review procedures have to be fair, equitable, timely, and not prohibitively expensive!

This is a major innovation on existing procedures, particularly where judicial review procedures in many Member States are currently quite restrictive, being limited only to narrow grounds of procedural review. The prospect of environmental groups and vociferous local opponents challenging a planning consent on substantive grounds will be an intensely unattractive one for developers, making it all the more important that appropriate EIA procedures are correctly applied at all stages of the EIA process.

Moreover, developers will have to be aware of the fact that, in accordance with settled principles of EU law, challengers may raise challenges with effect from 25th June, relying on the PPD's provisions, notwithstanding the fact that transposing domestic regulations have not been issued. Accordingly, any consent issued after 25th June which follows upon a procedure which has not fully observed the new requirements is challengeable and potentially void.

Given the UK's EIA transgressions of late, including a recent adverse European Court opinion on certificates of lawful development, and anticipated adverse judgements on the overly narrow interpretation of what constitutes a "project", and the improper application of the EIA requirements to multi-stage development consents, it's to be hoped that these new requirements aren't inadequately applied in the UK, with typical gung-ho complacency, to the effect that the current system is already compliant. But the current signs are not good. For example, the English and Scottish consultation papers both assert that existing judicial review procedures in the UK are already sufficient to meet the requirements of the PPD, yet many observers doubt whether this can possibly be the case.

The likely result is uncertainty, delay, expense, and unnecessary litigation.

Written by Barry Love, Associate, Environment & Pollution Law Group, Semple Fraser LLP.
barry.love@semplefraser.co.uk

Semple Fraser, 130 St Vincent Street, Glasgow G2 5HF
T: 0141 221 3771
F: 0141 221 3776
SEMPLE FRASER WEBSITE

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