A tougher environment

A European Commission review of the Environmental Impact Assessment Directive, started this year, is likely to lead to a significant tightening up of requirements for ports seeking permission for major development plans – and is also set to push up the costs of producing an EIA.

“The EC has lighted on the fact that the process of screening developments for the need for an EIA is a bit lax and decisions are being made in favour of the developer when they should not be,” says Louise Gowman, who heads law firm LG’s ports team. “It is looking to restrict particular states’ ability to make decisions in this respect and wants to take control.”

That is likely to mean more EIA statements will be required where previously they were not judged necessary.

The EC also wants to tackle the “variety of quality” in EIA statements, and it is expected to insist that only accredited providers carry out assessments, to ensure independent oversight. “The big consultants would have no problem with that. But what about the smaller specialists in a certain type of fish or algae? They may be reluctant to go through an accreditation procedure,” warns Ms Gowman.

The idea is that the use of accredited consultants with independent oversight would ensure that report writers do not come under pressure from developers, and reports would be more “forensic” than “could be”, she adds.

Overall the EIA process is set to become “increasingly laborious”, says Ms Gowman. “But we advise clients, don’t worry about any of that, because systems change, EIAs change. It is all wholly dealable with, provided you have an approach in which you are actually driving and you are upfront addressing all the things to be addressed. If you take this approach, you will find that the hurdles and legislation fall away – because you are talking to the regulators and they help.
“If, however, you do the minimum possible, tell no one anything and turn a blind eye to things you think you will get away with, you will be doomed.”

She advises ports: “Don’t be shy to come up with solutions, even if they cost money, to get consent as quickly as possible. This requires a lot of commitment from the developer’s end.”
The experience of Wightlink in having its new, larger cross-Solent ferries declared unlawful under the EU Habitats Directive serves as a warning to everyone to make sure that their plans are thoroughly screened, says Andrew Hignett, who heads up the ports and marinas team at Lester Aldridge’s marine practice, LA Marine.

In February, the High Court ruled that Wightlink had failed to comply with its duties under the Habitats Directive in introducing the ferries in 2009. A challenge had been brought by the Lymington River Association, which argued that the ferries were harming protected mudflats and salt marshes rich in bird and marine life.

Wightlink’s statutory background, as successor to the old Sealink, meant it was deemed to be the competent authority for Lymington Dock, and as such it should have carried out an impact assessment of the new ferries, says Mr Hignett.

Fortunately for Wightlink, although the judgment went against it, LRA did not seek an injunction stopping the service.

“This case underlines the need to get your ducks in a row right at the start and not invest millions of pounds on new ferries before you have done so – not just from the legal perspective but also from the PR perspective,” says Mr Hignett.

EU regulations require a competent authority to carry out a proper assessment where it has decided that a plan or project is going to have a significant effect on the integrity of a Natura 2000 site (Special Protection Areas or Special Areas of Conservation).

“It is vitally important that you carry out a screening exercise to decide whether or not a plan or project is a significant change – and, if you decide it does, then you have to carry out a full assessment,” he says. “Even if it is patently obvious that your project will have no significant effect on the integrity of a Natura 2000 site, you still have to demonstrate you have been through the process.”

Wightlink is now carrying out a retrospective EIA, and has drawn up plans for shore works at the ferry terminal and mitigation works on the salt marshes.