Archived decisions

Contact: Alan Inder, ext 6759 email: [email protected]

1. Summary

1.1 The Government has published a consultation on proposals for the application of the Environmental Impact Assessment Directive to be extended to cover certain additional activities in the marine environment. The purposes of this report are to explain the implications of the proposed changes for the County Council in its role as Harbour Authority for the River Hamble, and to put forward for consideration a draft response.

1.2 The report proposes a response to the consultation which recognises the need to apply the proposed legislative amendments in a balanced way, which safeguards the environmental qualities of the River Hamble without placing undue administrative and financial burdens on commerce and industry.

2. Recommendation

That the comments set out in Section 7 of this report, and in the Appendix, be submitted to the Department for the Environment, Food and Rural Affairs as the River Hamble Harbour Authority's response to the consultation on the Marine Works (Environmental Impact Assessment) Regulations 2007.

3. Introduction

3.1 The Department for the Environment, Food and Rural Affairs (Defra) has published a consultation on proposals for the application of the Environmental Impact Assessment (EIA) Directive to various regulated activities in the marine environment. The activities include the removal or disposal of substances or articles, and the construction, alteration or improvement of certain works.

3.2 The proposed Marine Works (Environmental Impact Assessment) Regulations 2007 will provide a statutory framework for making an EIA, and for public participation in the decision making process, when an application for marine works is being processed.

3.3 The closing date for responses to this consultation is 16 March 2007. As the River Hamble Harbour Board meeting is after this date, a copy of this report has been sent to Defra before the deadline. Any comments made by the Harbour Board be forwarded immediately after the meeting.

4. The Environmental Impact Assessment Directive

4.1 The Environmental Impact Assessment Directive¹:

(i) requires assessment of the likely environmental effects of projects;

(ii) lists projects (in Annexes I and II) which should be subject to EIA;

(iii) lists factors, the effects on which must be assessed.

4.2 The Public Participation Directive amends the EIA Directive to ensure that the public know about projects that are subject to EIA and have the opportunity to participate in decision making.

5. The Proposed Regulations

5.1 Currently the provisions of the EIA Directive apply to many forms of development and activity in coastal areas of the UK, but they do not apply to:

(i) the deposition of materials; or

(ii) schemes/activities that would affect navigation, including harbour works below low-water mark.

5.2 The UK Government is required to bring in regulations to ensure such activities are subject to EIA. Therefore the proposed Marine Works (Environmental Impact Assessment) Regulations 2007 aim to apply the Directive to carry out EIA with regard to:

(i) The Food and Environment Act (FEPA) 1985, Part II, ie to FEPA licences;

(ii) Coast Protection Act 1949, Part II, ie to consents under the Act; and

(iii) Harbour Works (Environmental Impact Assessment) Regulations 1999, Part II, ie to harbour works consents.

5.3 The new regulations will also provide the statutory framework for carrying out EIA and public participation in the decision making processes by proscribing the procedures to be followed.

5.4 Applications for FEPA licences and for consents under the Coast Protection Act and Harbour Works legislation are already subject to consideration of the effects on the marine environment and its resources. However, this is done informally without necessarily complying with the requirements of the EIA Directive. The proposed Regulations are designed to ensure that procedures for the assessment of environmental effects, and for public participation, are rigorous enough to be compliant with European law.

6. Specific Provisions

Licence Fee

6.1 The new Regulations will extend the power of Defra, as the FEPA licensing authority, to require the applicant to pay "reasonable fees", according to principles settled by the Minister.

Regulated Activities Requiring EIA

6.2 An EIA will be carried out either by:

(i) agreement between an applicant and the regulator (in England, the Secretary of State for the Environment);

(ii) mandatory determination (ie the regulator considers the proposal to be a project listed in Annex I of the EIA Directive); or

(iii) discretionary determination (ie an Annex II project, subject to certain thresholds - see below).

6.3 The Regulations will provide criteria for helping decide whether or not an EIA is required, and make provision for an applicant to request a `screening opinion' (opinion given by the regulator as to whether or not an EIA is required). The request must be accompanied by, at least, a location map and description of the project. The regulator:

(i) can ask for further information;

(ii) must consult with appropriate consultation bodies, allowing 28 days;

(iii) must give a screening opinion and the reasons for it; and

(iv) may require the applicant to pay a fee.

In reaching its screening opinion the regulator must have regard to thresholds set out in Annex 3 of the consultation document.

Environmental Statement

6.4 A key part of the EIA is the Environmental Statement (ES). The consultation document lists the types of information to be included in the ES, including a non-technical summary. The applicant may request a `scoping opinion', ie the regulator's opinion on the extent of the information to be provided in the ES. If one is requested, the applicant must provide certain information, and the regulator will then consult appropriate bodies before providing the scoping opinion and reasons for it. The applicant may be required to pay "a reasonable fee" for a scoping opinion.

Publicity

6.5 The regulator must publicise the EIA application and its ES, or have the option of directing the applicant to do so. Representations must be made within 42 days. The proposed Regulations set out arrangements for consideration of representations in the decision-making process. In cases of dispute over facts the regulator may instigate an inquiry.

6.6 The regulator, having made its regulatory decision, will be required to notify the applicant, the consultation bodies and any persons making representations.

7. Comments

7.1 The length of the consultation document (71 pages) would initially suggest that the proposed Regulations represent a major development of legislation with significant ramifications for the River Hamble Harbour Authority. However, on close inspection, this appears not to be the case. The Regulations aim to fill minor gaps in the application of the EIA Directive and, to a large extent, appear to be formalising (or making mandatory) what is already happening in areas of good practice such as the River Hamble.

7.2 Overall, the proposed Regulations are to be welcomed. In principle, the application of EIA to developments or activities subject to the Coast Protection and FEPA Acts, and Harbour Works legislation, apart from ensuring necessary compliance with European legislation, will help to ensure that the environmental effects are properly assessed. However, it will be important to ensure that application of the Regulations does not add administrative and financial burdens on the commercial sector and regulatory authorities.

7.3 Within the consultation document there are 15 questions posed by Defra, which deal with specific aspects of the proposed Regulations. These questions are listed in the attached appendix, together with the responses of the River Hamble Harbour Authority.

8. Impact Assessments

8.1 Assessment of the Race Relations (Assessment) Act has been considered in this response but no adverse impact has been identified in terms of race, creed or gender.

9. Conclusion

9.1 As mentioned in paragraph 7.2, the proposed regulations are to be welcomed, because they will help to ensure that the environmental effects of proposed developments and activities are adequately assessed, but they will need to be applied in a balanced way that avoids placing undue burdens on regulators and the commercial sector.

9.2 In conclusion, there probably will be very few projects within the area of the Harbour Board which will come within the scope of the new Regulations. In those cases where projects are affected it will be important for the regulators to apply the Regulations in a sensible and proportionate way. After five years the Government ought to review the way in which the Regulations have been applied and make revisions if necessary.

9.3 As a final point, there is a need for clarification of the relationship between the proposed Regulations and the proposals for improving the marine licensing system under consideration in the development of the Marine Bill. There is considerable potential for overlap and duplication, and possibly conflict. Defra's attention is also drawn to the report `Streamlining of Coastal Consents Procedures, which was produced by Atkins for Hampshire County Council and submitted with the County Council's response to the consultation on `A Marine Bill'.

1230/AI

APPENDIX

RESPONSES TO CONSULTATION QUESTIONS

The questions below are those listed in Defra's consultation document. Each question is followed by the River Hamble Harbour Authority's response.

Question 1 : Are there any other consultation bodies which you think we should include in the Regulations?

A: Yes, we consider that Trinity House and English Heritage should be specified in the list of consultation bodies.

Question 2: Should we specify in the Regulations which body should be statutory consultee?

A: Yes, unless there are compelling reasons against doing so.

Question 3: Is there any reason why we should not extend the existing requirement for business to pay a reasonable fee for the service that is being provided to them under the Food and Environment Protection Act 1985 to other expenses incurred under the proposed Marine Works Regulations?

A: No. It is reasonable to extend the requirement, as a matter of principle: those who stand to benefit financially should pay, and not the taxpayer. However, the licence fee should be reasonable and proportionate; ie applicants for small works should not be required to pay a large fee, as it would be unfair to small businesses and detrimental to the local economy.

Question 4: Do you have any views on the thresholds in Annex 3 to this consultation? Should thresholds be included in the Regulations?

A: The thresholds in Annex 3 appear to be standard thresholds that are listed in other EIA Regulations [check], which is appropriate for consistency. Yes, the thresholds should be in the Regulations. However, it is not clear whether the thresholds take account of cumulative effects, as in the case of a moderately sized scheme being followed by another.

Question 5: Do you have any comments on the procedure for requesting a screening opinion? Do you consider it appropriate for the regulator to charge a reasonable fee in respect of the expense of providing a screening opinion?

A: Generally the procedure appears to be acceptable. However, the regulator should be given a time limit for giving a screening opinion. The "reasonable fee" should only cover direct costs.

Question 6: Do you consider it reasonable, under any part of the proposed regulations, for the regulator to treat an application as having been withdrawn where information has not been provided within a reasonable period as specified by the regulator?

A: The timescale for providing information should be agreed between the regulator and the applicant, otherwise an unrealistic deadline might be imposed, and the applicant should be able to apply for a short extension of time if necessary.

Question 7: Do you consider a period of at least 28 days as a reasonable amount of time for consultation bodies to consider a scoping opinion?

A: 28 days should be adequate (although an increase to 25 working days might be better). The phrase "at least 28 days" is too open-ended, and lacks an upper limit.

Question 8: Do you have any comments on the regulator having the authority to direct the applicant to carry out a function that the regulator could otherwise carry out? Does this provision, where it appears in the proposals in this consultation, provide for more transparency in relation to the costs of processing an application (the cost of publicising and forwarding information to consultation bodies, for example)?

A: The regulator should be able to direct the applicant to publicise, and the applicant should pay, but the regulator should provide guidance and advice.

Question 9: Is 42 days a reasonable timescale for making representations on an application and environmental statement? Would a different timescale be more appropriate?

A: 42 days is reasonable (although an increase to 40 working days might be better).

Question 10: Do you have any comments on the procedure for considering representations from the public?

A: The procedure needs to be robust enough to avoid an inordinate amount of time being spent on dealing with "representations for representations sake".

Question 11: Do you have any comments on the proposed offences?

A: No.

Question 12: Do you have any comments on the economic costs and benefits of the proposed Regulations?

A: The taxpayer should not have to bear any of the costs.

Question 13: Do you have any comments on the social impact of the proposed Regulations?

A: No.

Question 14: Do you have any comments on the environmental impact of the proposed Regulations?

A: The Regulations would have a positive environmental impact.

Question 15: Do you have any comments on the impact that the proposed Regulations might have on small businesses, and on how they might affect competition in the industry?

A: As referred to above, it will be important to ensure that the Regulations do not have an undue adverse impact on small businesses.