Government corrects its breach of EU laws by giving extra protection to common land3 min read

Do you know someone who would appreciate a present that will help protect the future of accessible green spaces for all?

We have welcomed the Government’s decision to apply environmental impact assessment (EIA)¹ to common land.² The society led the campaign to change the regulations so as to protect common land.

New regulations were laid before parliament on 25 April and take effect on 16 May.

In future, works on common land—typically to erect fencing—will have to be assessed against the requirements of EIA. If applicants want to carry out works beyond a threshold, set out in regulations, they will have to seek an EIA screening opinion from the government’s adviser Natural England, to decide whether a full EIA is needed. The screening opinion, and an EIA, are in addition to the requirement for consent to works on common land under section 38 of the Commons Act 2006.³

Minchinhampton Common, Gloucestershire

Commenting on the Government’s decision, our case officer Hugh Craddock said: ‘We are delighted that the Government has seen sense and applied the requirements of environmental impact assessment to commons. There has never been any lawful excuse for exempting commons from EIA, and England has been in breach of the EIA directives for decades.

‘Now, proposals for extensive fencing on commons will be subject to the same holistic assessment process as on any other land—that is wholly right, but long overdue.’

Hugh continued: ‘We had already contested the Secretary of State for Environment’s determination of applications for new fences on common land without consideration of the requirements of EIA, and said that Defra was heading for infraction if it did not change its approach. And we responded to Defra’s consultation on amendments to domestic implementation of EIA in agriculture to call for these changes to be made. We are very pleased that the new regulations do exactly that.

‘But we are sorry to see that Defra has not yet explained how the requirement for EIA will fit in with the assessment of applications for works on common land—we say that applicants should have to clear the screening process before applying for section 38 consent. It would be outrageous if applicants, objectors and the Secretary of State had to waste time on a section 38 application, only to find that the entire project had been called in for a full EIA assessment.’

¹ EIA is a process set out in a series of EU directives which seeks to ensure that proposals for development that are likely to have a significant effect on the environment (for instance, by virtue of their nature, size or location) are subject to a requirement for development consent and an assessment of those effects before the development is allowed to proceed.

In England, the requirements of the directives are implemented by the Environmental Impact Assessment (Agriculture) (England) (No.2) Regulations 2006 (SI 2006/2522), now as amended by the Environmental Impact Assessment (Agriculture) (England) (No. 2) (Amendment) Regulations 2017 (SI 2017/593).

Defra consulted on implementing changes to EIA (in relation to England) in December 2016. The 2017 amending regulations were made on 24 April 2017 and come into force on 16 May 2017. No response to the consultation has been published at the time and date of this press release.

Schedule 1 to the 2006 Regulations sets out the relevant thresholds: where works exceed the threshold, the applicants will have to obtain a screening opinion from Natural England to determine whether the works are likely to have significant effects on the environment. If they will, then applicants will be required to undertake a full environmental impact assessment.

² Common land is land subject to rights of common, to graze animals or collect wood for instance, or waste land of the manor not subject to rights. The public has the right to walk on nearly all commons, and to ride on many.

³ If anyone wants to erect works on common land he or she must obtain consent from the Secretary of State for Environment, Food and Rural Affairs under section 38 of the Commons Act 2006. This is in addition to any planning permission.

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