ENVIRONMENTAL IMPACT ASSESSMENT OF PLANS
AND PROGRAMMES
(19953)
6333/99
COM(99) 73
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Amended draft Council Directive on the assessment of the effects of certain plans and programmes on the environment.
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| Legal base: |
Article 175 EC; co-decision; qualified majority voting
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| Department: |
Environment, Transport and the Regions
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| Basis of consideration:
| EM of 25 November 1999
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| Previous Committee Report:
| HC 34-xviii (1998-99), paragraph 6 (5 May 1999)
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| To be discussed in Council:
| 13-14 December 1999 |
| Committee's assessment:
| Politically important |
| Committee's decision:
| Cleared (decision reported on 5 May 1999)
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Background
10.1 Council Directives 85/337/EEC and 97/11/EC
lay down conditions for the assessment of the effects of certain
public and private projects on the environment. However, they
only require such assessments to be carried out before development
consent is given for the projects in question, and in March 1997
the Commission proposed that these should also be carried out
during the preparation of public plans and programmes which are
subject to formal adoption, and which set frameworks for development
consents.
10.2 When we previously considered this
proposal[50],
we noted that the Government did not consider Community legislation
in this area to be appropriate, and that we also had concerns
over the proposed legal base. In particular, the Commission's
view was that this should be Article 130s(1)[51],
on the grounds that the primary purpose was environmental, whereas
we considered that the proposal fell clearly within Article 130s(2)[52],
which covers "measures concerning town and country planning".
However, on the strength of the Government's agreement that a
"strong argument" can be made for basing the document
on Article 130s(2), we cleared the proposal on 8 July 1998, expressing
the hope that, despite the negotiating difficulties foreseen by
the Government, it would pursue this point as vigorously as possible.
10.3 As we noted in our most recent Report
of 5 May 1999, the Commission subsequently produced an amended
proposal which retains Article 130s(1) as the legal base, but
which makes a number of other changes, the main effect of which
would be to clarify the types of programme to which the measure
would apply; to include sustainable development as an objective
alongside environmental considerations; and to include detailed
requirements on the scope of the required environmental statements.
In our conclusion to that Report, we noted that, despite the Government's
efforts to press the case for Article 130s(2) as the legal base
for this proposal, the Commission, the majority of other Member
States, and the European Parliament, remained unpersuaded. However,
as regards the substance of the proposal, we took the view that
the present text — though not without its shortcomings —
represented an improvement in a number of respects on the one
originally put forward by the Commission. Consequently, as we
had already cleared that, and, since the present document appeared
to raise no new issues, we were prepared to clear it as well.
Supplementary Explanatory Memorandum of 25 November
1999
10.4 We have now received a Supplementary
Explanatory Memorandum of 25 November from the Minister for
the Regions, Regeneration and Planning (Mr Raynsford) reporting
on developments since we last considered the subject, and enclosing
a Regulatory Impact Assessment.
10.5 On the substance of the proposal, he
says that, although the UK supported the principle of the Directive,
it had a number of concerns about its scope and practicality.
However, he adds that it has now been made clear that the assessments
proposed are intended to apply only to plans and programmes likely
to have significant effects on the environment, and that those
to be subject to mandatory assessment have been more clearly defined
and bounded. In addition, Member States will be allowed to exempt
plans and programmes which they judge as unlikely to have significant
environmental effects, for example those affecting only small
areas or involving minor modifications to existing plans. He goes
on to say that consideration is also being given to defining a
wider category of plan which would be subject to mandatory initial
screening to establish whether a full environmental assessment
was necessary. However, at the end of the day, the Minister believes
that, although there remains some potential for overlaps or inconsistencies
between the proposal and other Community legislation (such as
that on habitats and birds), it could be expected to apply in
a way consistent with the existing UK approach, and that it would
not require new procedures to be set up alongside existing national
arrangements or duplication of environmental assessment where
provision for this already exists.
10.6 As regards the potential costs of the
proposal, the Regulatory Impact Assessment indicates that it is
difficult to estimate the net costs of implementation because
many of the requirements are already met in whole or in part.
However, the gross total costs of compliance are put at between
£10 million and £30 million, with the real additional
costs likely to be smaller than that. The Minister adds that the
main elements of any additional costs would probably arise from
more rigorous environmental analysis, and from the requirements
for public consultation where the bodies concerned do not already
undertake this. He also makes the point that, although there is
an unquantifiable potential for increased bureaucracy and delay,
and indeed legal challenge if plans or programmes are not properly
assessed, the Government considers that the Directive has been
clarified in ways which reduce these to an acceptable level.
10.7 Finally, the Minister refers to our
earlier concerns about the legal base. He suggests that there
are three possible options — Article 175(1) as sole legal
base; Article 175(2) as sole legal base; or a combined legal base
of Article 175 (1) and (2). He also considers there are grounds
for arguing that the proposal contains elements falling under
both bases, but that the legal arguments in support of Article
175(1) and the combined base appear stronger than those for Article
175(2). He adds that a change in the legal base is unlikely, since,
unless the Commission itself were to agree, this would require
a unanimous decision in the Council, where he says only a minority
of Member States support a change to Article 175(2). He also stresses
that ultimately the correct base is a question of law to be determined
by the European Court of Justice in the light of any action brought
by a Member State or one of the Institutions.
Conclusion
10.8 We are grateful to the Minister
for this further information, which suggests that adoption of
this proposal would bring some useful benefits and be unlikely
to cause any great difficulties within the UK. We have also noted
that any change in the legal base from that proposed by the Commission
is unlikely. Since we have already cleared the proposal, we are
drawing the Minister's latest comments to the attention of the
House, but make no recommendation for further consideration.
50 (18045) 7093/97; see HC 155-ii (1997-98), paragraph
12 (22 July 1997); HC 155-xii (1997-98), paragraph 2 (14 January
1998); and HC 155-xxxiii (1997-98), paragraph 4 (8 July 1998). Back
51 Now
Article 175(1). Back
52 Now
Article 175(2). Back
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