1 The Environmental Assessment Directive
12.117 European Council Directive 85/337/EEC (the Environmental Assessment Directive)156 required member states to ensure, before consent to certain types of development is given, that projects likely to have a ‘significant effect’ on the environment by virtue of their nature, size or location are made subject to an assessment of their environmental effects.
The directive allowed member states to integrate EIA into existing procedures for development or project consent, however. This was done in the UK by adding the EIA requirements to the Town and Country Planning procedures for granting planning consent.157 The Directive has been amended and extended and was re-enacted in consolidated form in 2011.158(a) Projects requiring EIA
12.118 The EIA Directive divides projects requiring environmental assessment into two categories: those listed in Annex 1 which require an environmental impact assessment in every case, and those which must be subjected to EIA only when member states consider that their characteristics so require (these are listed in Annex 2 to the Directive). Where the requirement for EIA applies, the developer must provide an environmental statement which includes information about the effects of the proposed operation, both directly and indirectly, on a range of matters specified in the Directive159 viz. human beings, flora and fauna, soil, water, air, climate and landscape, material assets and the material heritage.
12.119 A number of important types of agricultural development potentially require EIA under the terms of the Directive. The only category of Annex 1 development requiring mandatory EIA in every case is the provision of livestock facilities for the intensive rearing of pigs or poultry.160 A larger number of agricultural operations are caught by Annex 2 of the Directive viz.
an EIA is required if, having regard to their characteristics and/or location, they will have a ‘significant’ effect on the environment. The member states can use either a case-by-case examination or projects or set thresholds or criteria to determine whether projects fall within the Annex 2 criteria and should therefore be subject to environmental assessment.161 The current guidance to local authorities on the operation of these provisions relies upon indicative thresholds for identifying Annex 2 projects requiring EIA.162 The Directive places the following agricultural operations within Annex 2 as potentially requiring EIA:•Projects for the restructuring of rural land holdings
•Projects for the use of uncultivated land or semi natural areas for intensive agricultural purposes
•Water management projects for agriculture (including irrigation and land drainage projects)
•Initial afforestation and deforestation for the purpose of conversion to another type of land use
•Intensive livestock rearing installations, including poultry and pig rearing installations which are not caught by Annex 1 because the number of animals to be provided for does not exceed the thresholds set on the directive
•Intensive fish farming, and
•Reclamation of land from the sea
(b) Public Participation requirements
12.120 A principal policy underlying the EIA Directive is the need to widen public participation and consultation on developments affecting the environment. The Directive’s requirements on public participation and dialogue were strengthened by the so-called ‘Public Participation Directive’.163 This brought European Union law into compliance with the provisions of the Aarhus Convention on Environmental Information and Access to Justice in Environmental Matters. The 2003 Directive amended the EIA directive to more closely define the ‘public’ to whom EIA development applications must be made public, and this now includes NGOs promoting environmental protection.
Environmental pressure groups must be deemed to have an interest for the purposes of information rights and access to the courts to challenge development decisions. The principal EIA public participation requirements are contained in Article 6 of the consolidated Directive, which now164 specifies in some detail what information must be made public – details of the application for consent, the fact that the development is subject to EIA, the name of the competent authority to which comments can be sent, and where and at what times the Environmental Statement can be viewed. The public must also have the right of access to a review procedure before a court of law or other independent body if they wish to challenge a competent authority’s handling of the public participation provisions. Practical information on this must be made available to the public.(c) Transposition into English Law
12.121 The Environmental Assessment Directive was considerably strengthened in 2007,165 adding a further 14 categories of project to Annex 1 and making them subject to EIA in all cases.166 The Directive now requires that developers submit not only an environmental statement but an outline of the main alternatives to the proposed development under consideration and a statement of the reasons (having taken account of the environmental impacts) for their choice of development. Modifications to existing projects or developments also require EIA if they are likely to have significant environmental effects, in the case of both Annex 1 or 2 projects. The principal transposing regulations are now the Town and Country Planning (Environmental Impact Assessment) Regulations 2011,167 and these will apply in all cases where an agricultural project or development requires planning permission prior to being carried out. The assessment procedures applied by the 2011 regulations are drawn from Annex 1 and 2 of the consolidated Directive. Projects listed in Sch 1 to the 2011 regulations will require EIA in all cases (unless exempt).
Those listed in Sch 2 require EIA only if they are likely to have significant effects on the environment, having regard to the indicative thresholds set out in Ministerial Guidance to local planning authorities.16812.122 As we have seen, however, a large number if agricultural developments do not require planning permission prior to being carried out. The implementation of the EIA Directive has therefore required the creation of special consent procedures for some types of activity that are subject to EIA, but which are outside domestic planning controls – the principal categories of relevance to this work are the conversion of semi natural grazing land to intensive agricultural use, salmon farming and some land drainage operations. The EIA procedures for these categories of development are discussed further below.
12.123 Transposition of the EIA Directive has also necessitated the amendment of the procedures applicable to applications for capital grants. Section 17(1) of the Agriculture Act 1986 requires that the Minister, when discharging any functions connected with agriculture in relation to any land, must have regard to, and endeavour to achieve, a reasonable balance between the promotion and maintenance of a stable and efficient agriculture industry, the economic and social interests of rural areas, the conservation and enhancement of the natural beauty and amenity of the countryside, and the promotion of its enjoyment by the public. It follows that the environmental impact of proposed works will be relevant to the resolution of applications for grant aid. The introduction of these controls in English Law was controversial, and the requirements of the Directive imperfectly transposed. Environmental assessment did not apply, for example, where detrimental operations were carried out without applying for capital grant aid. If the operations in question do not require planning permission, moreover, the possibility of assessment simply did not arise. This was a deficiency in the transposition of the Directive into domestic law. The principal category of operation caught by the Directive, but where no planning permission was required, was the conversion of semi natural grazing land to intensive farming uses. This has now been specifically provided for in the Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006,169 thus closing a major loophole in UK compliance.