8 The Agriculture EIA Regulations – Rural Land Projects

12.159 The Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006,²³² hereafter ‘the Agriculture EIA Regulations’, apply to two categories of development:

(a)The Restructuring of Rural Land Holdings, and

(b)Converting Uncultivated Land to Intensive Agriculture.

12.160 Consent to carry out operations within the scope of the Agriculture EIA Regulations must be sought from Natural England.

(a) Introduction

12.161 Because a change in land use to agricultural purposes (or from one agricultural purpose to another) is exempt from planning control there was formerly no mechanism to apply EIA where a semi natural landscape was converted to intensive agriculture, or where rural land holdings were restructured. Where it is proposed to erect new buildings or fixed equipment (for example glasshouses or livestock buildings) the development will be within the 2011 EIA regulations. The indicative thresholds in the 2011 regulations posit that an EIA should be required where the development involves more than 0.5 hectares of land. But if no planning application is required for ‘development’ (for example if no new buildings or fixed equipment are being erected) there was formerly no administrative consent mechanism with which to apply EIA to this category of case. This was a loophole in the UK’s transposition of the EIA Directive, which requires EIA for projects to convert uncultivated and semi natural areas to intensive agriculture, and where projects involve the restructuring of land holdings, in cases where they would have significant effects on the environment.

12.162 The Environmental Impact Assessment (Uncultivated Land and Semi-natural Areas) (England) Regulations 2001²³³ attempted to close this loophole by creating a bespoke administrative consent procedure administered by DEFRA, and requiring an EIA by the secretary of state before the conversion of land to intensive agricultural use.

12.163 Where projects come within the EIA Agriculture regulations, consent must now be obtained from Natural England before they can lawfully be carried out. The regulations provide for the screening of applications by Natural England to determine the potential application of the regulations to proposed projects (see below).

(b) Application and Scope of the Regulations

12.164 The EIA Agriculture regulations apply to two categories of project:²³⁵

(i)Restructuring projects affecting agricultural land. This applies to any project for restructuring rural landholdings eg by removing substantial lengths of examining field boundaries such as walls, fences, ditches or banks, and

(ii)Uncultivated land projects. This applies to a project to increase the productivity of uncultivated land or a semi natural area, and ‘includes projects to increase the productivity for agriculture of such land to below the norm’.²³⁶ Land is ‘uncultivated land’ for this purpose if it has not been cultivated in the previous 15 years.

12.165 Thresholds are applied by the regulations to determine whether projects within either category will have ‘significant’ effects on the environment (and hence require consent from Natural England and an EIA before they can lawfully be carried out).²³⁷

(i)Restructuring projects

12.166 These will be projects that involve operations that result in a significantly different physical structure/arrangement of one or more holdings. The EIA Agriculture regulations apply to projects that involve the removal or addition of substantial lengths of field boundaries (fences, ditches, hedge banks or walls, for instance), and projects to recontour the land eg by adding or removing large amounts of earth or rock.

•Involves the addition or removal of 4 kilometres or more of any field boundary (including any wall, fence, bank, ditch or watercourse), or

•Involves the restructuring of an area of land exceeding 100 hectares, or

•Involves the addition, removal or redistribution of over 10,000 cubic metres of earth, rock or other material.

•If the land is wholly or partly in a ‘sensitive area’ the thresholds are reduced to 2 kilometres, 50 hectares and 5000 cubic metres respectively.

•EIA will be required in all cases if a screening notice has been issued by Natural England. The screening notice will disapply the thresholds for a particular area of land, where Natural England consider that any restructuring operation will have a significant effect on the environment, whether the relevant size thresholds are exceeded or not.²³⁸

12.167 The regulations require the effects of individual sub-threshold projects to be viewed cumulatively. If, so viewed, they will have a significant effect on the environment, then an EIA will be required.

(ii)Uncultivated land projects

12.168 Any project to increase the productivity of uncultivated land or a semi natural area will be caught if the uncultivated land or semi natural area involved is 2 hectares or more in area.²³⁹ The EIA regulations can be applied to land smaller than this in extent by a screening notice issued by Natural England. As with restructuring projects, the regulations will be applied cumulatively by Natural England, so that a number of sub-threshold projects on the same area of land will require EIA if taken together they have a significant effect on the environment – even if they take place separately over a considerable period of time.

12.169 The type of project covered includes:

•cultivation by physical means, such a ploughing or harrowing the land, draining it or physically clearing vegetation, and

•Cultivation by chemical means, such as the application of increased levels of inorganic or organic fertilisers, or applying herbicides to clear vegetation.

(ii)Identifying ‘Projects’ for which EIA Required

12.170 The identification of ‘projects’ to which the EIA Agriculture Regulations apply requires the application of two tests; a determination test (is the land uncultivated land or a semi-natural area?) and an operational test (are the works proposed for intensive agricultural purposes?). Land will be considered to be uncultivated if it has not been subject to physical or chemical cultivation in the last 15 years.²⁴⁰ There is, however, no definition of ‘semi-natural area’ in the EIA Agriculture Regulations, and Natural England uses the Biodiversity Broad Habitat Classification published by the Joint Nature Conservation Committee (JNCC)²⁴¹ as a guide to different habitat types that may constitute such areas.²⁴²

12.171 The determination test for semi-natural land projects is not without difficulties. In the first place, the test as operated by Natural England places heavy reliance on ecological criteria, as may be expected given its statutory nature conservation role – but the required criteria for screening in the EIA Directive are much wider and encompass (for example) landscape, historical and archeological features.²⁴³ The test focuses rather on the species of plant found on the land in question, and criteria have been developed for a variety of habitat types including unimproved acid and neutral grasslands, upland dwarf shrub heath and moorland, scrubland, and for coastal habitats and for standing water and canals.²⁴⁴

12.172 The operational test is also not without difficulty. It is broadly interpreted in the EIA Agriculture Regulations to mean ‘a project to increase the productivity for agriculture of uncultivated land or a semi-natural area and includes projects to increase the productivity for agriculture of such land to below the norm’.²⁴⁵ Natural England’s public guidance specifies physical cultivation by means of ploughing, harrowing or rotovating, chemical enhancement of soil, sowing seed and draining land or clearing existing vegetation (physically or with herbicides) – but makes it clear that this is not an exhaustive list.²⁴⁶ Although this is potentially very wide, it has significant limitations and will not, for example, encompass activities that benefit from permitted development rights under the General Development Order, such as erecting small farm buildings or making farm tracks and spreading soil,²⁴⁷ as the Order does not apply ecological controls to limit or condition the exercise of permitted development rights.

12.173 The operational test for restructuring projects is more straightforward. This will apply wherever there are physical operations which give a ‘significantly different physical structure to the arrangement of one or more agricultural holdings’ and will include the removal of substantial lengths of field boundary (such as hedge banks fences walls or ditches) or the recontouring of the land by moving large quantities of earth.²⁴⁹ Normally at least four kilometers of field boundary will have to be involved, or the movement of 10,000 cubic metres or more of earth. The operational test lacks ecological focus in some respects. For example, maintenance work is excluded from the definition and will not engage the Regulations, and this is defined to include work on existing structures, including clearing blocked or clogged ditches. Clearly, clearing drainage ditches could have very ‘significant’ ecological implications if it affects water levels in surrounding fields and field margins, quite apart from the effects on invertebrates and other wildlife that may establish themselves in ditches over a period of time if they are left uncleared.

12.174 The EIA Agriculture regulations only apply to uncultivated land projects if the project is undertaken to increase the productivity of uncultivated land or a semi natural area. As mentioned above, this expressly ‘includes projects to increase the productivity for agriculture of such land to below the norm’.²⁵⁰ This removes an interpretative problem encountered under the 2001 Regulations in identifying ‘intensive’ agricultural use, and judicially considered in DEFRA v Alford.²⁵¹ There the defendant had resumed possession of a neglected tenant farm in a poor state of husbandry, and (in addition to repairing boundary walls and fences) had applied farmyard manure and calcified seaweed to the land in order to increase its productive value with a view to keeping 40 suckler cows on the land.

(iv)Sensitive Areas

12.175 Those sensitive areas in which a lower threshold for the application of EIA will apply are defined²⁵³ to mean Areas of Outstanding Natural Beauty, the Norfolk Broads, the National Parks, and Scheduled Monuments. Similar protection to that in the EIA Agriculture regulations is given to other sites – such as SSSIs and European Sites – by inter alia the Wildlife and Countryside Act 1981 and the Conservation of Habitats and Species Regulations 2010.²⁵⁴

(v)Exceptions

12.176 The regulations do not apply to the following:²⁵⁵:

(a)projects which involve drainage or forestry work within the EIA requirements described below;

(b)to development which is otherwise caught by the principal EIA regulations (ie SI 2011/1864, described above);

(c)to the removal of hedgerows (this is covered by the Hedgerow Regulations 1997 instead);

(d)to work on common land requiring permission under the Law of Property Act 1925; or

(e)to projects in residential areas and gardens.

(vi)European Sites

12.177 Where a restructuring project, or a project to intensify agricultural use on semi – natural or uncultivated land, is proposed for a European Site designated for protection under the Conservation of Habitats and Species Regulations 2010, the EIA requirements are amended to apply stricter criteria.²⁵⁶ These mirror those applicable to site management laid down in the 2010 regulations. Natural England must not grant consent following an EIA for any project that would involve doing anything that is unlawful under the Conservation of Habitats and Species Regulations, and can only grant consent for a project if it has considered the implications for the site management objectives of the European site designation and is satisfied that it will not adversely affect the integrity of the site. Consent can be given if there are imperative reasons of overriding public interest, although these reasons cannot be of a social or economic nature if the site hosts a priority habitat or species. Natural England also administers site protection in European Sites, so this will ensure an integrated approach by the agency to the application of the EIA and Conservation of Habitats and Species Regulations rules to projects in wildlife sites of European level importance.

(b) Application for Screening Decision

12.178 It is illegal to begin or carry out an uncultivated land project or a restructuring project of an extent that is equal to or exceeds the threshold applicable to it, unless a screening decision has been obtained permitting the project to proceed. Applications for screening decisions must be made to Natural England.²⁵⁷ Failure to do so constitutes an offence publishable by a fine not exceeding level 5 on the standard scale²⁵⁸.

12.179 The application for a screening decision must be accompanied by a plan and a brief description of the nature extent and purpose of the project and of its possible effects on the environment. The selection criteria to be applied by Natural England when making the screening decision are set out in Sch 2 to the 2006 Regulations. These require them to have regard to the characteristics of the project, including in particular its size, the accumulation with other projects, the use of natural resources, the production of waste, pollution and nuisances likely to arise as a consequence and the risk of accidents (having regard to the substances and technologies to be used in the project). The project’s location must also be taken into account, and in particular the existing land use, the ‘relative abundance quality and regenerative capacity’ of natural resources in the area, and the natural absorption capacity of the natural environment – with particular attention to wetlands, coastal zones, mountain and forest areas, nature reserves, protected wildlife sites (eg SSSIs) densely populated areas and landscapes of historic cultural or archaeological significance. The potential impact of the project is the third criteria to be applied eg its magnitude and complexity, and the duration frequency and reversibility of the impacts identified as likely to arise. The overriding requirement, having regard to these factors, is to decide whether the project will have a significant effect on the environment.²⁵⁹ If it will, then it will be a ‘significant project’ and cannot be carried out unless consent has been obtained from Natural England.²⁶⁰ Natural England must conduct an EIA prior to giving consent.

12.180 Natural England must give a screening decision within 35 days of the application, or such longer period as is agreed with the applicant, and if no decision is given within that time the applicant is entitled to treat the failure as a decision that EIA is required and notify Natural England accordingly.²⁶¹ Natural England’s decision must give full reasons for the conclusion reached and be entered on a register open to public scrutiny.²⁶²

(c) Scoping Opinion and Environmental Statement

12.181 Before applying for consent, the applicant can request a scoping opinion from Natural England as to the information to be included in the environmental statement.²⁶³ Natural England has five weeks in which to issue the opinion, and can if required consult with a number of statutory consultees (the Environment Agency for example) on technical aspects of the application before responding. Sch 3 to the 2006 regulations sets out in detail those matters that must be covered in the environmental statement. Sch 3, Part II specifies matters which must by included in all environmental statements. These include, for example, the data required to identify and assess the main effects which the project is likely to have on the environment, and an outline of the main alternatives studied by the applicant and his reasons for his choice of project. The applicant must demonstrate that alternatives to the project chosen were studied and that the decision to proceed with the particular project for which consent is now being applied was taken in the context of a consideration of the environmental effects of the various alternatives. A non-technical summary of the information in the statement must also be supplied. Sch 3, Part I sets out more specific criteria which must be included if Natural England so specifies in the scoping opinion. This may, for example, require a more detailed examination for the aspects of the environment likely to be significantly affected by the proposed project, such as flora, fauna, soil, water, air climatic factors and material assets (including the architectural and archaeological heritage, and landscape).²⁶⁴ A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment can also be required.²⁶⁵

(d) Obtaining Consent

12.182 The application for consent to carry out the proposed project must be made to Natural England and must include an environmental statement.²⁶⁶ The environmental statement and application must be made available for public inspection and the time and place where the documents can be inspected within six weeks of the notice of application made public in a local newspaper.²⁶⁷ Similarly, it must be sent to all consultation bodies that Natural England consider appropriate (for example the Environment Agency), and they must be given six weeks in which to make representations on the application.

12.183 The subsequent decision of Natural England must take account of the environmental information that the environmental statement and consultation process provides, including any representations made by the public and the views of statutory consultees.²⁶⁸ The regulations also make provision for the provision of further information by the applicant if Natural England so requires, in which event this may also be made available for public inspection. Natural England’s decision cannot be given earlier than six weeks from the publication of notice of the application under the regulations, or within 28 days following the publication of any further information that has been requested.²⁶⁹

12.184 By virtue of reg 18 the consent (if given) must be made subject to the following conditions:

•That it will lapse if the project is not commented within one year of the date on which granted, and

•That it will expire if the project is not completed within three years of the date on which the consent was granted. A project will be competed for these purposes if all works permitted by the consent have been carried out and all changes of use implemented.

•Any material changes in the operations or uses authorised in the consent will require further consent.

•Natural England can require such further conditions as she may think fit.

12.185 The applicant must be notified of the decision, together with the full reasons and considerations on which it is based, and any representations made by the public on the application.²⁷⁰ The decision must also communicated to the statutory consultees, and to the public by the publication of a notice in a newspaper circulating in the locality, or by such other reasonable means as seems appropriate to Natural England (this might include for instance the posting of site notices). The decision must be made available for public inspection, together with the full reasons and the considerations on which it is based. It must include a description of the principal measures required to be taken to mitigate the effects on the environment that have been identified as a consequence of the EIA.

(e) Appeals

12.186 Provision is made in Part 5 of the 2006 regulations for appeals to the secretary of state against decisions on a screening application, consent application, or against the issuance of a stop notice or remediation notice. Notice of appeal must be given within three months of the decision appealed, and the secretary of state must determine whether it will be dealt with by written representation, a hearing or by a local enquiry.²⁷¹ Detailed rules are laid down for the conduct of appeals in each case is set out in regs 33 and 34. Regulation 35 provides for judicial review of Natural England’s decision to be available to any person aggrieved by its decision that a project is not significant (and does not require EIA), or by a decision to grant consent for a project to be carried out. The High Court can quash a decision if it not lawfully made, or if the interest of the applicant have ‘been substantially prejudiced by a failure to comply with any requirement’ of the 2006 Regulations.²⁷²

(f) Enforcement

12.187 If a screening decision has been issued determining than the project is a relevant project to which EIA applies, then it will be an offence to begin or carry out the project without first obtaining the consent of Natural England.²⁷³ Provision is also made in the regulations for the issue of stop notices where work is carried out in contravention of the regulations,²⁷⁴ or where it is in contravention of the terms on which consent has been issued.²⁷⁵ Natural England also has power to issue a remediation notice requiring the land to be put back into the condition it was in before the project commenced and specifying a time period for completion of the reinstatement work required.²⁷⁶ Proceedings for any offence where a project has been started without consent,²⁷⁷ or where there is an alleged breach of a stop notice or remediation notice, must be brought by natural England within a period of 6 months ‘beginning with the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge’.²⁷⁸