Getting your Environmental Impact Assessment right

If you are proposing to make changes to rural land, be sure you submit the right information to Natural England as part of the environmental impact assessment screening or consent decision, to avoid fines or a criminal record

Author:

Matthew Powell

29 February 2020

Environmental management

Legal

Rural

Rural economy

The Environmental Impact Assessment (Agriculture) (England) (No.2) Regulations 2006 protect our environmental heritage from damage by agricultural intensification.

Before May 2017, applicants only had to provide basic project information to Natural England, which then gathered the evidence and consulted interested parties, such as the county archaeologist, local wildlife trust and the local biodiversity records centre, before deciding as to whether it needed to be screened under the regulations.

A screening decision is effectively a filter that decides whether a proposed project falls under the regulations or not. If it is screened in, the project is likely to have a significant impact on the environment, and it requires a greater level of assessment.

There is a general misconception that the screening decision is a permission, but it is not. However, on 16 May 2017, the 2014 revision to the directive was implemented, since when land agents or advisers have had to carry out research before submitting screening applications to Natural England.

Who needs to apply?

The regulations only consider agricultural projects that either increase the productivity of semi-natural or uncultivated land, even to levels below the norm generally what would constitute being agriculturally improved land for the particular area of the project or restructure rural holdings. Semi-natural land is defined as a priority habitat under section 41 of the Natural Environment and Rural Communities Act 2006, an area used by significant numbers of section 41 species such as breeding or wintering waders, or as land that includes regionally and nationally important archaeology and landscapes of material value such as historic parkland or designed landscapes.

Uncultivated land should not have been cultivated physically or chemically in the previous 15 years. This definition includes but is not restricted to:

activities that disrupt agricultural soil, such as ploughing, some forms of harrowing, subsurface harrowing, discing and rotovating
chemical treatment through the addition of organic and inorganic fertilisers or soil improvers, or use of broad-spectrum pesticides or herbicides.

Some priority habitats and associated land may require low levels of management such as priority grasslands, and this is not counted as cultivation. For the purposes of the regulations, Natural England does not consider that land under habitat creation options in agri-environment schemes is semi-natural until at least 15 years after the last cultivation, excluding the low levels of cultivation mentioned above.

Land is also deemed to be uncultivated if evidence or records to prove cultivation were submitted with the screening application. By default, land is uncultivated unless proven otherwise.

The thresholds applicable to the regulations are shown in Table 1. It is unacceptable for a landholder to misuse these thresholds to intensify the use of uncultivated land or a semi-natural area larger than 2ha on a gradual basis. Likewise, they cannot restructure small areas or claim that work in excess of the threshold is made up of two or more sub-threshold projects.

Table 1. Thresholds under Schedule 1 of the 2006 Regulations

Project	Non-Sensitive area	Sensitive area¹
Semi-natural or uncultivated land improvement project	2ha	2ha
Restructuring involving addition or removal of any boundary, excluding hedgerow removal²	4km	2km
Restructuring involving the addition, removal or redistribution of a volume of earth or other material related to land	10,000m³	5,000m
Restructuring involving an area of land	100ha	50ha

Table 1. Thresholds under Schedule 1 of the 2006 Regulations

Project	Non-Sensitive area	Sensitive area¹
Semi-natural or uncultivated land improvement project	2ha	2ha
Restructuring involving addition or removal of any boundary, excluding hedgerow removal²	4km	2km
Restructuring involving the addition, removal or redistribution of a volume of earth or other material related to land	10,000m³	5,000m
Restructuring involving an area of land	100ha	50ha

1 Sensitive areas include national parks, areas of outstanding natural beauty, the Broads and scheduled monuments.
2 Removal of hedgerows are covered by the Hedgerow Regulations 1997.
SOURCE: Environmental Impact Assessment (Agriculture)(England)(No 2) Regulations 2006

In each of these cases Natural England views work as a single project that needs consideration and may require consent even if a landholder carries out the work gradually over a protracted time or it involves different activities aimed at increasing the productivity of the land such as ploughing in one area and increased use of fertiliser or drainage in another.

The three stages most relevant to applicants are as follows.

Screening decision: first, the project is screened to see whether it is likely to have a significant effect on the environment. If it does not, the project can continue; if it does, it must receive consent before proceeding. Screening is not permission, but determines whether a project falls within the scope of the regulations.
Scoping opinion: if a project does fall under the regulations as a significant project, an application can be made to Natural England for a scoping opinion on the environmental statement that will be required; this reduces wasted time and effort, and the expense of providing irrelevant information. Where a scoping opinion is requested, the ensuing environmental statement must take all of its requirements into account.
Consent: when applying for consent, the environmental statement sets out the impact and the steps taken to mitigate it. Natural England will consult the public and make a decision. Consent is granted, granted with conditions, or refused. Applicants can appeal to the Department for Environment, Food & Rural Affairs at the screening decision and consent stages.

Applicants can appeal to the Department for Environment, Food & Rural Affairs at the screening decision and consent stages.

What is required for screening?

The screening decision is the main part of the process. When applying you must complete the form relevant to your project and supply an environmental screening report, in which you must set out the what, where, when and how of the project.

You must also, as a minimum, submit environmental information including but not limited to:

archaeological information from the county archaeologist, including the significance of any historic environment features in the project area
biodiversity information from the local environmental records centre or wildlife trust, including whether there is a county wildlife site
other consultations with relevant bodies, including the local lead flood authority for drainage-related projects and the Environment Agency.

Applications without the minimum information will be rejected until it is provided. You can also submit additional information, such as field surveys and archaeological reports, if they enable Natural England to rule out particular effects. The agency's default position is not to make a site visit, but it reserves the right to do so where it deems necessary.

When determining an application for a screening decision, Natural England will rely on the applicant's information. If there are any gaps in this, or if the application does not clearly explain how it can mitigate the effects of the project, it will consider the project to be significant and screen it in to the next stage of the process.

It is thus vital you supply sufficient information to rule out any potential effects: the more relevant information you provide, the more likely it will be to rule out an effect. If no amount of mitigation could prevent the effect, Natural England will inform the applicant in its decision that the project is unlikely to be consented.

Screen test

Since 2006 Natural England has assessed 2157 screening applications.
Only 172 screening application have been screened into the regulations requiring a consent decision.
Natural England has received only 12 consent applications.

What if there is a breach?

There are offences under the regulations that range from beginning a project without a decision or providing false or misleading information to procure a decision. The usual penalties include being required to restore the land to a good environmental condition – that is, its state immediately before the project began – either through a voluntary enforcement undertaking or a remediation notice. Where a project has begun without a decision, Natural England can serve a stop notice, and has powers of entry to ascertain whether a breach has taken place or serve a relevant notice

Natural England will try to help anyone who is in breach to comply with the regulations; however, that may be by serving notices. It also has a duty to report any breaches of the regulations to the Rural Payments Agency, because Good Agricultural and Environmental Condition 6 on maintaining the level of organic matter in soil, from The Guide to Cross Compliance in England 2016 is applicable to the regulations. This may result in a sanction against all payments received by the business from the agency.

In highly significant cases or where there is continued non-compliance, Natural England may prosecute. If successful, this can lead to a criminal record, an unlimited fine and a requirement to restore the land to good environmental condition.

Matthew Powell is the protected areas senior adviser for the 2006 Regulations at Natural England matthew.powell@naturalengland.org.uk