My EIA Principles

No.3 - Statutory Timescales Are Statutory, So Use Them

You're probably expecting this to be another installment of Andy stating the bleedin' obvious. You're not wrong.

If you accept you can't control what you can't control (and not everyone does accept that, let's be honest) then a rare constant in the EIA process is the statutory timescale a planning authority has to return a screening or scoping opinion. Written into the legislation, they are intended to give the planning authority enough breathing space to review, think, consult, collate and respond, whilst at the same time not asking an applicant to curb their enthusiasm for too long. On balance, I think that's fair.

There are some nuances in the actual timescales that apply depending on which consenting regime is being used, but for our purposes let's assume it's a planning application and 21 days for screening and 35 days for scoping applies. Actually, let's be even lazier and call it three weeks for screening and five weeks for scoping.

Full disclosure Part 1...neither screening nor scoping is mandatory. There may be very good reasons why you decide not to screen, fewer perhaps not to scope. Remember though, on submission the planning authority will screen it as part of the validation process. If you haven't asked the question before and it's deemed to require EIA now, well, you do the maths. I don't want to be in the same room - nay, the same postcode - when you break that one to the client. Once it's validated and under consideration, if you've deviated from expectations (good chance, without having formally asked what they were) you may well find your very chances of achieving consent hang in the balance. That said, scoping is only a point of view at a point in time, and the planning authority or others are entitled to change their minds with the full application in front of them. We consult, we collaborate, we innovate, we re-consult, and we try our utmost not to end up there. But it happens. Exciting isn't it?!

Full disclosure Part 2...there's no obligation to screen and scope independently of each other. You can submit a combined screening and scoping request, and again there may be very good reasons to do so. So I don't discount the possibility of not going through screening and scoping in some circumstances, or of combining them into one request. But I rarely, if ever, recommend either straight off the bat.

A screening request must include a description of the site with a plan, a description of the proposed development including its physical characteristics and the aspects of the environment likely to be significantly affected, and what those effects might be. To the extent the information is available, that is. It can also include a description of any features of the proposal, or proposed measures, envisaged to avoid or prevent significant adverse effects. That's right...if it's relevant, your proposed mitigation (in-built or otherwise) can be taken into account in coming to a screening decision. Section 8 of the Regulations says so...

You've done a fair bit of homework to bring all that together. And you might still genuinely not know how the screening decision will go, but you probably have a hunch. Regardless, at this stage I would avoid anything potentially abortive, and focus on the early tasks you know need to happen, EIA or not. Focus especially on planning things that could be seasonally constrained - ecology surveys, viewpoint photography, traffic surveys, and such like. Now might even be the time to start some survey work at risk. Pay particular attention to European Protected Species including bats, otters and great crested newts. If you need those surveys, or there's a reasonable likelihood you might, then stop gazing at your naval whilst your screening opinion arrives and go find out. The current restrictions on site surveys as a result of the Covid-19 pandemic - different in different parts of the UK - might add another complexity to your planning. If surveys you need can't happen, you need to know this now.

Likewise at scoping. There is clearly much greater risk of proceeding as proposed without a scoping opinion in hand. Having said that, I like to think the seasoned EIA professional will have a pretty good go at determining likely requirements based on experience, technical expertise and professional opinion. As I said before, you won't get it 100% right, but there should be enough to go on in your proposed scope that isn't in question to mean that you don't need to just sit and wait. Often project programmes dictate that you can't.

There will be points of detail to argue once you have a scoping opinion. There might even be whole new assessments (or parts of) to complete that you simply hadn't anticipated. But whether there are or there aren't, you still lost time waiting for scoping if you chose to do nothing. In an ideal world there will be lots of time in the programme to address anything unexpected in a scoping opinion. In reality there usually isn't, so by this point I'd much rather be focusing my attention on any points of detail or curveballs rather than spreading my time between those and the assessments I could have finished by now. Obvious right?

The planning authority might ask for your agreement to an extension to the statutory timescales - more likely for scoping than screening, but not unheard of for either - and my advice would always be to try to agree if you can. I'm not against antagonising a planning authority as a blanket rule, but let's not do it without good cause or unless absolutely necessary for a higher purpose. I take my hat off to the planning officer expected to bring together the views of disparate, sometimes competing, interests into one coherent scoping opinion (setting aside for now the ridiculousness of that being what happens at all). It's no mean feat. In my experience a planning authority will rarely ask for an extension without good reason, and it's rarely in the applicant's interests to disagree unless project timescales are so tight that doing so would cause a significant problem.

But if that's the case maybe you have far bigger problems than receiving a scoping opinion a bit late - like a ridiculous project programme.

Not uncommon you say? Touché.