EIA Agriculture – changes have been made, however uncertainty remains

Ben Standing, Browne Jacobson

Background

On 16 May 2017 the Environmental Impact Assessment (Agriculture) (England) (No.2) (Amendment) Regulations 2017 (‘the English Regulations’) and the Environmental Impact Assessment (Agriculture) (Wales) Regulations 2017 (‘the Welsh Regulations’) came into force (together ‘the EIA Regulations’).

The Regulations implement Directive 2011/92/EU (‘the Directive’), however how implementation has been achieved varies.

The EIA Regulations are designed to provide environmental protection in respect of agricultural land which is not protected by other designations (for example sites of special scientific interest). This protection is necessary because agricultural projects are not development for the purposes of the town and country planning regime and accordingly agricultural land does not benefit from the protection afforded by that regime. Protection is afforded through the requirement to obtain a screening decision from the Welsh Ministers (‘the WM’) in Wales and Natural England (‘NE’) in England. Failure to comply with the EIA Regulations can lead to enforcement action.

By increasing how intensively they farm their land farmers can significantly increase the profit generated (and as a result the value of the land can increase by over 300%). Intensification of use can include the application of herbicide to grassland and reseeding with more energy rich species such as ryegrass. It can also include ploughing fields which have previously only been grazed. In many cases it also involves fertilisers and other agricultural imports being applied to the land.

From an ecological perspective the agricultural intensification of land use can lead to a significant decline in biodiversity. In many cases land which is being intensely used for agriculture can have 90% less species present than land which is being used less intensively. The Environment Act (Wales) 2016 and the Natural Environment and Rural Communities Act 2006 require the conservation of, and in the case of Wales, enhancement of, biodiversity.

Accordingly there is an inherent conflict between not placing unnecessary burdens on farmers with protecting important habitats and species.

What changes have been made?

Both England and Wales have implemented the Directive. Accordingly the overarching process is similar in both England and Wales. Some of the key amendments are considered below.

Uncultivated land and semi natural land

The Regulations are engaged when projects occur on either uncultivated land or semi- natural land. In Wales, the new regulations now define semi-natural land, whereas previously this formed part of the accompanying guidance. However the Welsh Regulations do not define uncultivated land and the guidance suggests that very little of this is to be found in Wales.

In England the situation is reversed. Uncultivated land continues to be defined as land which has not been cultivated in the last 15 years. However uncertainty remains regarding the interpretation of the words semi-natural. Guidance suggests that it is “land that hasn’t been intensively farmed, such as unimproved grassland or lowland heath”. However this is arguably difficult for a farmer to interpret and in practice the focus has been on the definition of whether cultivation has occurred in the last 15 years.

Drafting the Environmental Statement

Both sets of Regulations require the Environmental Statement to be drafted by someone who, in the opinion of the WM or NE (as appropriate), has sufficient expertise to ensure the completeness and quality of the statement. Guidance on what this constitutes is yet to be published. It is possible that this will increase the cost of producing the Environmental Statement, something which many farmers already state is prohibitive.

There are also additional requirements for the Environment Statement (in schedule 2 of both sets of Regulations), including considering the effects of climate change.

In Wales it is also now a requirement to include the information in a scoping opinion, whereas previously the requirement was only that the Environmental Statement should include the information specified in the Scoping Opinion.

Appeal period

In Wales the appeal period has also been reduced for screening and consent decisions. The period is now 28 days rather than three months. In England the period remains 3 months.

Thoughts

The Regulations act as an important protection for habitat land. Whilst the very best examples are protected under the Wildlife and Countryside Act 1981, significant areas of habitat land are under pressure from further land intensification. It is my experience that the political appetite and available resources to locate and designate key habitat types has declined in recent years. In many cases the Regulations are the only protection afforded to sites.

The amendments are unlikely to dramatically change the position for farmers in England and Wales. However guidance on who is a competent person to draft the Environmental Statement is going to be of interest to a number of people including farmers and environmental consultants. It also potentially provides another ground for aggrieved parties to challenge decisions made by WM or NE.

Much will continue to depend on how the competent authorities enforce the Regulations. In England and Wales over 90% of screening applications since the first regulations were introduced in 2001 (2002 in Wales) do not progress to the environmental statement stage. It is unclear how many projects which should be subject to the Regulations take place without being declared or detected by the competent authority.

It remains to be seen how the government approaches these regulations once the UK has left the European Union. No doubt many farmers will be pushing for a lighter touch approach to habitat protection. Environmental groups however are already vocal about what they see as a practical under implementation of the Directive. Much will depend on the emphasis the Westminster and Welsh governments place on protecting biodiversity.

In my opinion we are unlikely to see changes to the Regulations for a number of years, as the current Regulations already provide the governments with sufficient scope to alter their position as the political climate changes.

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