New EBRD Performance Requirements

September 22, 2008

The European Bank for Reconstruction and Development (EBRD) new environmental and social policy was approved on 12 May 2008.

The policy has more explicit social provisions. In some areas, the EBRD’s requirements exceed IFC’s requirements. This includes EBRD’s reference to obtain a “consent” where operations are located in areas with indigenous populations. Reflecting its membership, EBRD also refers to a number of European provisions related to the Aarhus Convention on Public Participation and the EU EIA Directive.

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EIA Reserve Matters

September 22, 2008

The amended EIA regulation came into force on the 1st September 2008.

These Regulations amend the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the 1999 Regulations”) so that they apply to applications for subsequent approval of matters under conditions attached to planning permissions.

In 2006, the House of Lords and the European Court of Justice (ECJ) ruled that the UK had failed to transpose the EIA Directive correctly, because the Regulations implementing the EIA Directive allowed only for EIA before the grant of outline planning permission and not at the later stage when reserved matters were approved.

The ECJ ruled that where development cannot be carried out until details relating to reserved matters are approved by a local planning authority, the decisions to grant outline planning permission and to approve the reserved matters must be considered to constitute, as a whole, a multi-stage development consent for the purposes of the EIA Directive. If it became apparent during the course of the second stage that the project was likely to have significant effects on the environment (for example, where those effects were not identifiable until then) then an environmental impact assessment was required. Since the Regulations then in force did not allow for EIA to be required at that stage, they did not fully implement the EIA Directive.

These Regulations amend the 1999 Regulations to close the loophole identified by the ECJ. As well as applying to applications for approval or reserved matters and other matters under a condition, they also apply to ROMP (review of mineral permissions) applications.


New UK EIA Good Practice Guidelines and Procedures

June 29, 2006

New good practice guidelines for EIA in the UK and an amended Circular on EIA have been released for consultation. These take into consideration some decisive EIA case law and recent judgements of the European Court of Justice:

UK Case Law:

  • A single project cannot be divided into smaller parts to avoid thresholds.
  • The scheme must be sufficiently fixed to allow adequate assessment of the environmental impacts.
  • Information relating to potentially significant impacts should be made available at the time of the decision. Conditioning surveys is not sufficient unless this is accompanied by mitigation to prevent significant impacts.
  • ES should be self contained.

European Court

  • In some cases EIA can be required at the reserve matters stage (R-v-London Borough of Bromley, ex parte Barker)
  • The EIA Directive should have a “wide scope and broad purpose” in it’s application.