Closing the environmental impact assessment loophole on commons

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We have called upon Defra to revoke its long-standing but unlawful exemption of works on common land from environmental impact assessment (EIA).

The Government has recently concluded a consultation on implementing an amending directive (Directive 2014/52/EU) on EIA. The consultation includes proposals to amend regulations* which apply EIA to agricultural development projects with likely significant effects on the environment. At present, those regulations require agricultural development projects to be screened to decide whether their impact demands an EIA, if the project exceeds certain thresholds as to the nature, size etc—for example, a project which involves more than 2 km of new or removed fences, walls or hedges in a National Park must be screened.

But the regulations exempt works on common land, regardless of the nature or scale of the works. Defra says this is because works on common land need the consent of the Secretary of State under section 38 of the Commons Act 2006 and are determined under their own regime.

Says Hugh Craddock, our case officer: ‘The EU has required the UK to screen projects for rural restructuring—such as extensive new fencing—since 1988, but Defra dragged its feet, and failed until 2006 to regulate such projects, and then only because of the risk of infraction proceedings by the European Commission.

‘Even then, Defra carved out an exemption for rural restructuring projects on common land, because of an “overlap” with the statutory consent regime for works on commons. But there is no overlap—that regime entirely ignores the requirement to screen projects to decide whether they should be subject to a full EIA.

‘In the decade since there have been dozens of applications for works on common land which exceed the thresholds set out in regulations, but they are never referred for screening, and we are not aware that the Secretary of State has ever required an EIA. That must now change,’ Hugh concludes.

* The Environmental Impact Assessment (Agriculture) (England) (No.2) Regulations 2006 (SI 2006/2522).

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