EIA Scoping: A Case Law Update
This article reviews the EIA Scoping process in practice and the repercussions of R. Finch v Surrey County Council (SCC).
Towards the end of 2020, the High Court issued a Judgment surrounding the understanding and implementation of the Environmental Impact Assessment (“EIA”) Regulations, specifically the process of EIA Scoping.
Overview of the Case
The main issue raised by the challenge was whether a developer’s obligation under the EIA Regulations to provide an Environmental Statement (“ES”) describing the likely significant effects of a development on Greenhouse Gas (“GHG”) emissions extended to the use of an end-product, not just its manufacture.
The proposed development concerned the production of crude oil and the ES supporting the application assessed the GHG emissions that would be produced from the manufacture of this oil. However, the challenge concerned the non-assessment by the ES of the GHG emissions that would be emitted when the crude oil produced from the site is used by consumers, typically as a fuel for motor vehicles, after having been refined elsewhere. This notion was dismissed with Mr Justice Holgate, acknowledging that this use of an end-product was not the subject of the application for permission and did not form part of the development ‘project’.
Of specific relevance to the EIA Scoping process, the Claimant contended that Regulation 18(4) of the EIA Regulations had been breached by the ES failing to follow the Council’s Scoping Opinion. Within this Opinion, the Council requested the assessment consider the global warming potential of the oil and gas that would be produced by the proposals. The claimant took this to also include the end-product of the crude oil. However, given that the judge dismissed the notion of the ES needing to consider indirect effects of the end-product, the challenge in regard to Scoping was also dismissed. However, what is interesting in this case was the interpretation of the Regulations in terms of the procedural requirements of the Scoping Opinion.
EIA Scoping Procedure
Regulation 15(1) allows the relevant planning authority to state their opinion as to the scope and detail of the information to be provided in the ES. As observed by Mr Justice Holgate, this does not fix or determine what must be provided in the ES.
Regulation 18(4)(a) requires an ES to be ‘based’ upon the most recent scoping opinion, in so far as the proposed development remains materially the same as that which was the subject of the opinion.
Regulation 18(4)(a) needs to be viewed in the context of Regulation 18(4)(b). The latter requires the ES to include “the information reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment…”. Likewise, Regulation 18(3) provides that an ES is a statement which includes at least the matters set out in sub-paragraphs (a) to (f). Sub-paragraph (b) refers to “a description of the likely significant effects of the proposed development on the environment”.
In the judgement, Mr Justice Holgate was clear that if an applicant submits an ES which does not provide details specified in a Scoping Opinion, the local authority can request further information under Regulation 25. Furthermore, the authority is not bound by the terms of its scoping opinion, in that Regulation 15(9) expressly allows the authority to require additional information to be provided (i.e. under Regulation 25). Indeed, if it becomes apparent to the LPA that there are likely significant effects that have not been assessed and reported as part of the ES then it must request this further information to accord with Regulation 3. For all these reasons, the mere fact that an applicant produces an ES which does not comply with the terms of a Scoping Opinion does not of itself amount to a breach of the 2017 Regulations (Paragraph 94, R. Finch v SCC) so long as the required environmental information is included in the ES and therefore can be taken into account when the application is determined.
This Judgement provides a level of certainty to the EIA Scoping process. Whilst it doesn’t fundamentally challenge established best practice which has been developed and employed over the years, it does somewhat allow a degree of comfort regarding the procedural requirements of the EIA Scoping process. Essentially, the EIA Regulations do not require the ES to contain information which complies with the Scoping Opinion and in such circumstances an ES would not fall foul of case law.
This article is for general awareness only and does not constitute professional or legal advice. Whilst every attempt has been made to ensure the accuracy of the information contained within it as at the date it is published, no party shall be entitled to rely on it and Avison Young accepts no liability for any party’s losses which may be caused by their reliance on it.