Planning matters

On 12 May, we will mark a year since the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment (‘EIA’)) (England) (Coronavirus) (Amendment) Regulations 2020 came into force.  Whilst the snappy title and content probably passed many by in the confusion of the early days of the first lockdown of 2020, hidden away in paragraphs 16 and 17 were some critical amendments to the Town and Country Planning (EIA) Regulations 2017 that provided those of us involved in major applications in England including EIA with some considerable temporary relief in the practicalities of producing and consulting on a final Environmental Statement (‘ES’) – and namely in whether this must be submitted in paper or electronic form.  The original Regulations were due to lapse at the end of 2020 and have now been extended until either the end of June 2021 or the end of December 2021 depending on the whether the submission being made is a full ES or further environmental information.

But I wonder if these need to lapse at all; and whether in fact we should use the lessons learnt over the last year and throughout the next few months to finally make some real progress in moving to a fully electronic system of EIA and, indeed, determination of major planning applications.  Is there a need to go back to paper copies?

The tradition of producing a paper copy of an ES and celebrating the sheer number of pages and A4 lever arch files you have managed to generate has always jarred with me; how can a document ostensibly in place to ensure that significant environmental impacts have been addressed meet its objective when a small woodland has been used to produce a carefully curated paper copy (at an often significant printing cost)?  Or indeed copies – as often we are asked to submit a number alongside major planning applications; which themselves will include armfuls of printed paper plans and documents.

I understand the difficulties faced by local authorities in their requests for paper copies.  The Town and Country Planning (EIA) Regulations 2017 require an applicant or appellant to make a ‘reasonable number of copies’ of the statement available at a specified address for review whilst an application is under consideration; but what is ‘a copy’?  The reason for the requirement is certainly clear; namely to ensure that the information is available for all to review, form an opinion and, if desired, to submit comments or representations (i.e. to ensure that nobody has been prejudiced by a lack of ability to access key environmental information).  But in a time of pandemic when the very places where public access could allow this information to be located had their doors closed; how could this test be satisfied?  There was little point in spending time and money in printing out the documentation for interested parties to peer at through the locked doors of the local authority or library.

Following a few weeks of initial confusion, the Covid Regulations allowed a more pragmatic approach; namely that confirming when access to public buildings was not possible that the ‘copy’ referred to in the Regulations could be an ‘electronic copy’ and an address could be a website address.  This has allowed for the submission of major planning applications and ESs to continue throughout the pandemic with ease, be the subject of consultation, commented on and determined; all without a single printer being switched on.

So what happens when the Covid Regulations lapse?  Given the demonstrable success of the last year in this regard, I am hopeful that we can learn from the recent experience and finally move to a fully electronic system of EIA with major planning applications.

Its not a new issue.  In 2002, the government set up the Planning Portal with the stated objective of providing an entry point to online planning information and to allow planning applications in England and Wales to be submitted online.  In 2011, the Portal celebrated that more than 50% of all planning applications were being submitted online and since then the system has continued to grow such that it is now the norm for minor and moderately scaled applications to be submitted electronically.

In addition to this, and over the last couple of years, PINS has been trialling fully electronic examination of Nationally Significant Infrastructure Projects and has now confirmed that there is no longer a requirement, at the point of submission, for DCO applications and associated EIA to be provided in printed form.  At the heart of this is some significant work to ensure the PINS website can cope with the scale of these major applications as well as ensure that they are clear and easy to navigate by providing the applicant with specific guidance on labelling and presenting individual electronic files. 

And within EIA, increased digitisation is something for which the industry has been lobbying over the last couple of years.  In its September 2020 response to the Planning White Paper called  ‘Levelling up EIA to Build Back Better’, the Institute of Environmental Management and Assessment (‘IEMA’) noted that:-

“The adoption of digital and paper-less submissions and virtual consultations has been accelerated by recent amendments to mitigate the Covid pandemic. IEMA recommends that some of these temporary measures are considered further to become permanent changes, such as the removal of the need to provide hard copies of documents.”

IEMA goes on to recommend the establishment of a permanent move to digital submissions, improved use of interactive mapping and the establishment of a national data hub for both primary data and EIAs.

I think the historic nervousness to ‘go fully digital’ for major applications including those with EIA is for three key reasons:-

• A nervousness or inertia toward new approaches (‘if it ain’t broke don’t fix it’);
  
  
• A concern about legal challenge (if a paper copy isn’t requested ‘as usual’ this will cause issues); and
  
  
• A worry that a completely digital system will not be fully accessible to all.

In my view the third point is perhaps the most important and ensuring that this test is satisfied will help to address the first two.  And here I think the lessons we have learnt over the last year are of critical importance.

Probably the easiest way to ensure access to the complex information in a major planning application and ES is via the internet.  ONS data indicates that in 2020, 96% of all households have access to the internet; but we also know from news over the last year that this is not as simple as it sounds, with quality of access and indeed access to a computer with the internet in certain households also being key determinants.

ONS data also records the reasons given by adults over 16 for using the internet to interact with public authorities or services.  Whilst not specific to planning applications and EIA, it is notable that the percentage using this means to obtain information from websites comprises just 44% of the population in 2020.  And an examination of differences by age, sex or disability status demonstrates a similar level of engagement:-

So once public buildings are open, we can perhaps address the first issue with planning departments or libraries providing computers with access to planning applications and EIA in the relevant district or borough.  But clearly more is needed to access harder to reach groups who currently do not use the internet to secure information from public bodies.

I think there are three key actions that work to assist in addressing this issue:-

1. Embed consultation into the whole process – remembering that one of the primary purposes of any ES and planning application is as an information source to assist in consultation and decision making, then it should be embedded into the ethos of the pre-application and EIA process. At the earliest stage, it is important to identify every party or group of consultees who will be interested in the submission and work to ensure that the content and presentation of the documentation will be effective and appropriate for each group.  In short it needs to be complete and complex enough for technical experts to fully understand the detail; but also use a language and format accessible to allow those less experienced in reading applications of this scale to be able to engage with the process.
   
   
2. Use a variety of means of communication – the sheer scale of data and written text in a major application and ES is a key issue whether in paper or electronic form. The benefit of using digital only submissions is that it allows access to a whole plethora of new and interesting ways of presenting complex data including using GIS or other mapping, infographics, etc.  Lichfields ‘Smarter Engagement’ tool can help in identifying the best ways to engage with different types of group and consultee.
   
   
3. Keep a record – with a note to the concerns over legal challenge, it is important to keep a clear digital record of comments made and how these have been addressed; and if anyone identifies concerns with accessing data, to ensure that these have been addressed quickly.

In my view, and if the above is implemented successfully, this should allow us to continue as we are without needing to start re-loading the printer with ink.  Digital-only submissions have been one of the success stories of the pandemic so lets keep the momentum, stop printing out major planning applications and ESs and lets save some trees.