European Property Federation

EPF logo

<Commission Roadmap for REFIT Evaluation of the Strategic Environmental Assessment Directive

If you have issues with the way public authorities draft their land use plans and programmes and/or with the environmental assessments (SEAs) and public consultations that accompany the drafts, now is a once-in-a-generation opportunity to use review of the EU framework legislation and organised EU debate to move the goalposts on your home ground.

The Environmental Impact Assessment (EIA) Directive directly impacts property developers by making consent for many different types of individual projects dependent on EIA reports prepared and submitted by the developer. The EIAD has been around since 1985 and EPF has worked on several revisions, the latest being the Coalition's work on Directive 2014/52/EU, thanks to which the developer's report:

  • must provide information on the project's "likely significant effects" on the environment", not its "potential impact"
  • is no longer obliged to describe measures envisaged to avoid significant effects
  • is to be prepared by "competent experts", not "accredited"
  • must describe "reasonable alternatives relevant to the project's specific characteristics", not "alternatives to the proposed project"

But there are limits to the environmental protection that can be achieved through EIAs, as the constraints and reporting requirements on individual development projects are a function of public authorities' upstream land use planning. Another EU law ensures that environmental concerns are taken into account at that level as well: the SEA Directive.

Directive 2001/42/EC on the effects of certain plans and programmes on the environment (known as the "Strategic Environmental Assessment (SEA) Directive")

Unlike the detailed and prescriptive EIAD, the SEAD is "essentially a process directive" (Report from the Commission to Council and Parliament on the SEAD, 15.5.2017), laying down an obligation on member states to:

  • submit their draft plans and programmes to an assessment of their environmental impacts, in particular, those which set the framework for future development consent of projects listed in Annexes I and II to the EIAD (that's key, because EIAD Annex II sets out all the types of individual projects that developers need to do an EIA report on)
  • set procedures for determining which plans and programmes are likely to have significant environmental impacts and thus require an SEA (Screening)
  • determine the level of detail required in the report (Scoping)
  • in the report, provide for reasonable alternatives to the plan or programme
  • identify the public likely to be impacted by the plan or programme and consult with them on the environmental assessment in good time before the plan or programme is adopted

The connection between the SEA and private developers is only indirect, as the SEA is carried out for public plans and programmes, presenting a direct burden only on public administrations. Thus, many of the same questions crucial to EPF members under EIAD concerning the detail and intricacy of the reporting requirement are of no concern here because the burden is on the public authority.

But SEAs set the framework for the subsequent EIAs* and often overlap with them, so they are important for private developers, with a clear impact on the nature and content of EIA obligations down the line. A good SEA can "help to speed up EIA procedures and streamline their scope (and thus reduce costs) by ensuring that project proposals are set within a policy framework that has already been subject to environmental scrutiny" (June 2016 Study in preparation for the Commission's report to Council and Parliament - the 'Milieu Report) (page 136, 2nd bullet) "as well as providing an initial outline of the possible alternatives" (p. 161, par. 1)

  • "... if they contain assertions of relevance to subsequent approval decisions, particularly regarding the necessity, size, location, nature or operating conditions of projects ..." (from German and Hungarian SEA transposition legislation, Milieu Report, p. 56)

Therefore, it is in private real estate's interest that this process be efficient and effective in the various member states. That's why the Commission offers this opportunity. It is a REFIT (regulatory fitness and performance) exercise, which means the Commission is open to any comments on SEAD defects or limitations so as to address them either through revision of the Directive or improved guidance to the member states.

Member states' obligation to consult with the public

The most direct benefit of SEAD for private real estate is the right under the Directive "to be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure" (SEAD Art. 6(2)). And that's a lot of opportunities, because "more than 2000 communities carry out SEA on local land use plans" (Milieu, p. 132, par. 1)

Is this happening?

Is it happening for you? The Directive lays down that "Member States shall identify the public for the purposes of paragraph 2, including the public affected or likely to be affected by, or having an interest in, the decision-making subject to this Directive" (Art. 6(4)). If it's not happening, or if it's only happening for environmental NGOs but not for real estate, say so!

Or again, the Directive lays down that the environmental report on the plan or programme must contain "reasonable alternatives" to the draft plans or programmes. Under Estonian and Flemish law, the reasonable alternatives need to be supported by stakeholders (Milieu, p. 79, last bullet). Might it not be good to generalise that, either in a revised Directive or in Commission guidance? Or is there a risk that in your country this would just give environmental NGOs more sway?

Is the time that your authorities allow for the public consultation process sufficient? It varies from 21 days in Estonia, Poland and Slovakia to 60 days in Denmark, Flanders and Italy and 16 weeks in Malta (Milieu, p. 95, par. 2).

At what stage in the process should the public consultation commence? The Milieu Report shows there is no consensus. Some believe that it has to be at the scoping stage; otherwise it's just an end-of-procedure, pro forma requirement that serves no purpose because the planning decisions are already cooked. But Estonian and Finnish government experts say that the content of the report at that stage is still in development and not detailed enough to allow the public and the authorities to provide meaningful input. Romanian experts say the public won't show any interest at that stage.

Unless, for you, all these considerations are overshadowed by a bigger one: that the earlier and the more complex and sophisticated the consultation process becomes, the more it slows down or artificially inflates the planning process:

"The UK explained that, as SEA is a statutory procedure, it also provides an avenue for those who disagree with certain plans or programmes to attempt to block or delay them by legally challenging the SEA procedure. This risk of legal challenge has encouraged inefficient SEA practices, such as consideration of unrealistic alternatives* or assessment of environmental factors that are not likely to be significantly affected, simply to avoid later accusations of failure to include them." (Milieu, p. 106, par. 4)

  • Seems to be a general problem. See Milieu, p. 113

SEA/EIA interaction

A general impression from the Milieu Report is that it all comes down to the quality of administrative culture. Some national and local governments have the skills and experience to make it work, others, less. In land use planning, a lot of information required of EIAs is already in the SEA. Some member states have been able to apply coordinated procedures and ensure synergies between the two assessments. In France, a joint SEA/EIA can be undertaken for housing or real estate business; in Germany for development planning. The Dutch also successfully integrate SEA/EIA works. In Estonia, an EIA is not required if the environmental impacts are already assessed during the SEA, provided that there is sufficient information available for granting development consent. In Flanders, if an EIA is needed after an SEA, the content can be limited to specific aspects that were not analysed by the SEA. See in particular Milieu pp. 160-163.

One might think that if all this is a question of national or local administrative skill, there is no need to tinker with the SEAD. And yet, Scotland proposed a requirement, in land use planning, that mitigation measures identified at the SEA stage must be the starting point for an EIA and they think it would be more effective if the EU made a formal link directly in legislation. Cyprus, Denmark, Estonia, France, Italy, Lithuania, Portugal and Spain suggested that either or both of the SEA and EIA Directives could be amended to streamline SEA/EIA coherence by including a specific link between the two Directives, and Ireland, Luxembourg and Romania have called for further guidance (Milieu; pp. 161-163).

In a nutshell, if you have issues with the way public authorities draft their land use plans and programmes and/or with the environmental assessments (SEAs) and public consultations that accompany the drafts, now is a once-in-a-generation opportunity to use review of the EU framework legislation and organised EU debate to move the goalposts on your home ground.

The Commission's consultation plan:

  • the current consultation on the Roadmap (deadline 8 August)
  • a second, more structured, public consultation
  • a third, targeted, consultation with the national authorities and other key stakeholders
  • a fourth, targeted, consultation with a range of competent member states' authorities in charge of preparing and adopting a plan or programmes subject to SEA, and an authority with environmental responsibilities
  • a dedicated workshop to share and discuss the draft findings of the evaluation to which member states and key stakeholders will be invited.

EPF Members: Full report under epf17-67 of 20.07.2017