Planning matters blog

How the 2011 Fukushima disaster continues to affect Berkshire

Dan Lampard and Nick Kirby 31 Mar 2023

Whilst Fukushima in Japan is 6,000 miles from the Thames Valley, the meltdown of three reactors at the Daiichi nuclear plant there, following the 2011 earthquake, continues to impact on the delivery of development within parts of West Berkshire, Wokingham and Reading.

Recent decisions by both a planning inspector and Reading Borough Council however suggest that the impacts of the constraints imposed in Spring 2020 may be being reduced – particularly for smaller residential schemes.

Background

The Atomic Weapons Establishment (AWE) facilities at Burghfield and Aldermaston are nuclear licensed sites with the role of manufacturing, maintaining and developing nuclear weapons for the Ministry of Defence. Both locations have, for many years, formed an important consideration in planning for new development in the region particularly in West Berkshire, Wokingham and Reading.

In particular the Detailed Emergency Planning Zone (DEPZ) that surrounds both locations has constrained new residential development in certain locations where it could increase human risk in the event of an accident occurring at this nuclear site. The DEPZs reflect the risks from events regarded as having a low likelihood of occurrence but a high impact if they do occur.

Whilst the DEPZ does not constitute a legal ‘exclusion zone’ around the AWE facilities, they do form a material consideration in the determination of planning applications. Similar provisions apply across all three local authorities – for example planning policy relating to schemes within the DEPZ in Wokingham are required to demonstrate that the increase in the number of people can be safely accommodated having regard to the needs of ‘blue light’ services and the emergency AWE off site plan.

Changes to the extent of the DEPZ

Spring 2020 saw a notable change in the approach to planning in proximity of AWE resulting from a reassessment in the extent of the DEPZ leading to a significant widening in the zone of protection. The changes responded to the Radiation (Emergency Preparedness and Public Information) Regulations (REPPIR) which were updated in 2019 (in response to events in Fukushima) and key amendments include:

They gave responsibility for defining the DEPZ to the lead local authority, which for AWE Burghfield is West Berkshire District Council, whereas previously this had been the responsibility of the Office for Nuclear Regulation;
They amended the way in which the geographical extent of the DEPZ was determined to include greater consideration of factors such as weather conditions, causing the size of the DEPZ to significantly increase; and
The DEPZ was also no longer defined as a circle, instead it reflected a larger and irregularly shaped area that takes account of the settlement pattern and the roads connecting them

The impact of the amended DEPZ was that development land previously considered potentially suitable for development, became subject to a significant constraint. Notably the widened DEPZ included Grazeley Garden Town which was being proposed to provide up to 15,000 homes and was generally supported by Wokingham, Reading and West Berkshire Council.

The promoters of Grazeley (Hallam Land, Crest Nicholson Operations and Wilson Enterprises) pursued an unsuccessful High Court challenge against the process leading to the extended DEPZ. Subsequently, in November 2021 Wokingham borough council confirmed with their Local Plan Update : Revised Growth Strategy that “in light of the changed circumstances, the Grazeley Garden Town proposal, and therefore the strategy proposed by the Draft Local Plan (February 2020), is no longer achievable”.

Initial planning decisions

Subsequently other developers (in some instances during the determination of planning applications appeals) found their sites suddenly falling within the extended DEPZ and their proposed developments subject to a constraint not envisaged at the time the planning application or appeal was submitted.

Bewley Homes submitted a Written Representations appeal against Wokingham Borough Council’s refusal of planning permission for the erection of 24 new homes at land to rear of Diana Close, Spencers Wood[1] in February 2021. The DEPZ had been extended after the refusal of the planning application and therefore the suitability of the site having regard to the DEPZ became one of the main issues considered by the Inspector during the appeal, despite it not being so during the planning application stage.

The inspector dismissed the appeal noting they considered it “necessary to adopt a precautionary approach”.

Similar decisions followed. In dismissing an appeal for three dwellings at Grazeley Road, Three Mile Cross[2] in August 2021 the inspector considered “the proposal has the potential to have a harmful effect on the blue light services, as well as the off site plan for the AWE”.

In September 2021 in dismissing an appeal for four dwellings at the Hearn and Bailey Garage[3], Three Mile Cross the inspector concluded that “while the risk is very small and the size of the development modest it would have an adverse effect on public safety with regard to off-site nuclear planning arrangements for the AWE”.

But subsequently…

An appeal decision was issued in January 2023 permitting JPP Lands’ proposals for the erection of 49 dwellings at Kingfisher Grove[4] following the failure of WBC to determine the application. One of the main issues the inspector assessed was whether the proposed development could be safely accommodated given the site’s proximity to AWE Burghfield, with the associated risks of an incident releasing radioactive material into the atmosphere.

Unlike the earlier appeals this decision followed a public inquiry where evidence put forward by both the appellants and WBC was tested. The inspector drew the following conclusions (in respect of that site) which led to the appeal succeeding:

The risk of an incident occurring would be very small – the appellants modelling suggested an event could occur on a one in 10,000 year basis
Considering the risk to the appeal site specifically taking into account factors such as wind conditions and adherence to the REPPIR emergency plan further reduces the risk of a person on the appeal site being harmed by such an incident to a single event in many more thousands or millions of years
Sheltering during an incident would be the primary method of protection to human health and this would be expected to be over a short period of less than two days
Despite blue light services expected to be working at capacity during an incident, these resources would be primarily focused on a localised area of the DEPZ over which the dispersed plume would pass, which would not compromise the delivery of emergency plan
In terms of the risks for a person at the appeal site in the event of exposure to radiation, this was expected to be low at 1.5 millisieverts (a measure of radiation) – this was considered “minor” when 20 millisieverts is the annual legal worker dose

Interestingly, Reading Borough Council (RBC) also recently granted planning permission (issued on March 10, 2023) for a Gypsy and Traveller transit site at Island Road in Reading. The site falls within the DEPZ for AWE Burghfield and RBC faced objections from the AWE Offsite Planning Group, RBC’s emergency planning officer and the Joint Emergency Planning Unit (covering Bracknell Forest, Windsor and Maidenhead and West Berkshire) as well as the Office for Nuclear Regulation (ONR) who all contended that the proposals conflicted with the requirements of the DEPZ.

RBC Officers, whilst accepting that “a family stuck for 48 hours in a [2.4 sq m] sanitary block is not going to be a pleasant experience” went on to conclude that the “relevant emergency planning specialists are not advising that they would be unsafe in doing so, if they heed the instructions”, RBC officers therefore recommended granting the planning permission, with a planning condition attached requiring that a detailed site specific emergency plan be submitted before development commenced and Members concurred with this decision.

Conclusions

Overall, the changes arising from the enlarged DEPZs clearly imposed restrictions on planning for new development in certain locations not previously within it. Importantly however these restrictions are in the form of a planning “material consideration” rather than an “embargo”.

Planning inspectors initially trod cautiously in considering this matter, with the Diana Close inspector acknowledging she was adopting a “precautionary approach”.

In a context where planning applications are considered on their merits, and the recent decisions by both RBC and the Kingsgrove Grove are rooted in the specific circumstances of these cases, it is generally inappropriate to draw sweeping conclusions – but here are three thoughts from us:

Testing the scientific basis of potential risks through a cross examination process during the Kingfisher Grove appeal led the inspector to conclude that a modest level of residential development at the appeal site could proceed without an unacceptable level of risk;
RBC Officer and members have been prepared to challenge, and ultimately defy, the combined forces of the ONR, the AWE Offsite Planning Group, the Joint Emergency Planning Unit and their own emergency planning officer concluding that their concerns were appropriately assuaged by a planning condition; and
Whilst these two specific decisions do not equate with a dam bursting we expect detailed assessment of the risk of developing sites in affected areas will continue to be an important consideration for planning applications and appeals. At this stage the two permitted schemes equate to just 56 dwellings / pitches which indicate that it may continue to be harder for larger schemes to demonstrate compliance with the AWE Emergency Plan.

[1] PINS ref. APP/X0360/W/19/3240232

[2] PINS ref APP/X0360/W/19/3240232

[3] PINS ref APP/X0360/W/21/3271017

[4] PINS ref. no. APP/X0360/W/22/3304042

Residents’ Ballot – Hindrance or Help?

Clare Catherall 27 Mar 2023

A unique aspect of estate regeneration projects is the potential requirement for a residents’ ballot to demonstrate support for the proposals being put forward on an estate. This requirement places residents at the heart of any project, giving them the opportunity to fundamentally support or object to regeneration proposals, in a clear yes/no vote.

For good reason, the Mayor of London is keen for residents to have a clear say in what happens on the estates where they live to ensure they are an integral part of the process. In reality, the Mayor has limited planning powers to enforce best practice on estate regeneration projects. Controlling access to GLA funding is one of the only ways he can exert power. It is now over four years since the requirement for a residents’ ballot became mandatory for any development in London involving the demolition of social housing and construction of more than 150 homes (of any tenure) which is subject to GLA capital funding.

To date, the requirement for a residents’ ballot has applied to a relatively small number of the estates currently coming forward for redevelopment. As of November 2022 (the latest data available from the GLA), 21 estates regeneration projects which were subject to GLA funding, had registered a successful positive ballot outcome and 51 projects had sought an exemption. The latter figure reflects the long-term nature of these types of projects with planning permission often granted prior to the ballot requirement being in place.

We are aware of numerous other schemes, which were not subject to funding restrictions, but where landlords have elected to undertake a residents’ ballot without being required, although there is no centralised record of these balloted schemes. We believe that voluntary ballots are becoming more commonplace as Registered Providers, Councils and development partners are recognising their prospective value.

The ballot requirement is likely to apply to other emerging projects in receipt of the Affordable Homes Programme funding. Many of the new homes covered by this funding are likely to be provided on housing estates, which, as identified in our Great Estates Insight, offer an unparalleled opportunity to help tackle the capital’s acute housing crisis, whilst delivering better homes, enhancing neighbourhoods and improving lives. Despite recent changes to the grant funding regime to exclude funding for the reprovision of existing homes (trigging a recent flurry of activity to implement permissions by April 2023) and growing viability challenges, this sector still represents a significant opportunity to deliver the homes needed in London.

The residents’ ballot has in the past been an area of disagreement between the Mayor and Government. At one point the Government openly criticised the ‘onerous conditions’ imposed by the Mayor on estate regeneration, particularly the need to run a residents’ ballot, and suggested that these requirements will jeopardise housing delivery. Others have criticised the extensive design work and engagement to be undertaken prior to the ballot process, often at risk before there is certainty on the level of support for the changes. This work can be time consuming and requires significant investment to ensure success. Most recently, Siân Berry, Green Party Member of the London Assembly, called for reform of the process, suggesting there is failure to ensure residents are having a say in a fair and democratic way.

Notwithstanding this, the underlying purpose of the residents’ ballot is to foster positive and inclusive engagement on developments which perhaps have the greatest direct effect on people’s lives. Many Councils and RPs are committed to running ballots on regeneration schemes, almost all ballots to-date have been overwhelmingly positive and the frequency and scale of estate renewal projects in London continues to grow. Lichfields’ view is that the Mayor’s approach to estate regeneration and the ballot process provide clarity and support for well-conceived development at London’s estates. This has certainly been our experience at Barnsbury where an overwhelmingly positive ballot outcome of 73% voting in favour of regeneration was achieved in August 2021. The ballot underpinned a constructive process of engagement with Islington and the GLA and ongoing resident consultation, prior to securing planning permission in early 2023.

The emphasis on collaboration and inclusion, and the introduction of the ballot provides a mandate for regeneration and the Mayor’s approach allows these often sensitive and charged developments to be progressed in a manner that is acceptable both politically and to communities.

For a ballot to be successful, it must be integrated as part of an open and inclusive engagement strategy, in which residents are consulted multiple times throughout the project. This background work is necessary to ensure that by the time the ballot is approached there is a groundswell of support for the proposals. Lichfields’ research found that a successful ballot outcome carries significant weight throughout a project, illustrating transparency in the engagement process and providing clear and unambiguous evidence to Planning Officers and Councillors of residents’ support for estate regeneration.

In this context, we outline below a few of the key principles to consider when preparing for a residents’ ballot.

Residents ballot - key principles

Eligible Residents: Any resident over 16 living on the estate for over a year is eligible to vote.
Defining the ‘Estate’: The ballot should be estate-wide, not limited to the immediate area of development or the homes being demolished. There can however be challenges applying this principle to very large estates where only a small amount of development is taking place. The GLA has in our experience taken a pragmatic view in agreeing a suitable area to be balloted. However, it can be an area of contention and further guidance has been published, advising on how an estate boundary can be defined. This guidance makes it clear that where there is uncertainty as to what constitutes the estate boundary it is incumbent upon the Investment Partners (RP/Council/JV partner etc.) to propose a boundary with a clear rationale and a number of pertinent considerations are listed - such as residents’ conceptions of what constitutes their estate, the typology and /or age of buildings and geographical boundaries such as road or train lines etc.
Landlord’s offer: This is the proposition residents vote on in the ballot. It must include at least a minimal level of information (objectives; design principles; approx. quantum of new homes and tenure mix; decant and phasing strategy; and commitments to ongoing consultation). In our experience though, more information and effective communication maximises the prospect of a positive outcome.
Timing: There is no procedural link between the timing of the ballot and the planning process, but there are clear reciprocal benefits in aligning the two. In Lichfields’ view, the ballot should be run when pre-application discussions are at a sufficiently advanced stage, the scheme is being crystallised and in-principle support has been secured from Officers. An earlier ballot has less chance of success or might result in abortive work if a development is amended later (and the GLA can reclaim funding if a planning permission materially deviates from the Landlord’s Offer).
Majority required: the ballot must offer a ‘yes/no’ vote on the Landlord’s Offer and a simple majority is required to pass the vote, though a large majority demonstrates unambiguous support and clearly carries more weight with planning officers and decision takers. There is no minimum threshold for turnout.
Repetition: There is no limit on the number of ballots that can be held and a revised Landlord Offer can be put to residents in the event of a ‘no’ vote or if revisions are required. This gives some comfort and flexibility, but the aim should clearly be to secure a ‘yes’ vote first time around.

Further guidance on the residents’ ballot and other themes associated with estate regeneration can be found in Lichfields’ Great Estates Insight.

Image credit: Edmond Dantès via Pexels

Nutrient Neutrality Update for the Tees Catchment: A Way Forward?

Aimee Litchfield 24 Mar 2023

It’s been a whole year since Natural England sent shockwaves through the housebuilding industry across England, including those 12 local authorities within the catchment of the River Tees, by increasing the number of catchments and authorities that are subject to its advice in respect of nutrient neutrality. Over that period, nutrient neutrality has been a hot topic in the North East with the advice of Natural England being that planning permission, including for reserved matters and where conditions still need to be discharged, cannot be legally granted for residential developments unless they are able to demonstrate nitrate or phosphate neutrality.

The Tees catchment is experiencing high housing pressure with more than 500 dwellings needed per annum. The HBF estimate that the delivery of 21,420 homes within the North East have been held up by the announcement last year. In the light of this level of need and the fact that the River Tees is only subject to Nitrogen problems (some other catchments have Phosphorous or both which require more land to mitigate), the catchment has been selected as the location to test the proposed credit system.

Natural England is set to launch its nutrient credit bank later this month and this blog examines the proposed application process and allocation system and what this means for development proposals that are currently being held up by nutrient neutrality.

How are credits established?

There are requirements in the Levelling Up and Regeneration Bill (LURB) for all waste water treatment works that serve a population of more than 2,000 in the affected catchment areas to be upgraded to the highest technically achievable limits by 2030. In the meantime, Natural England has identified temporary mitigation measures to bridge the gap until the new requirements are in placebetween now and 2030 (and continue post 2030 given that Natural England and Northumbrian Water believe that upgrades to treatment works will only negate two thirds of the need).

The topography and geography of the Tees catchment makes the reversion of arable land the most suitable temporary mitigation method and will generate the highest number of credits in the shortest time. This is followed by the creation of wetlands, although these can take three years to establish. So far, Natural England has been able to fallow enough agricultural land to generate 1,600 credits to be made available for mitigation within the Tees Valley catchment over the next 12 months.

What is the current position on occupancy rates?

The 12 local authorities that fall within the Tees catchment have commissioned an independent study into the occupancy rates that are to be used within the credit calculations. The report is expected to be published and made available before the end of March.

Whilst Darlington Borough Council have confirmed they will be using a figure of 0.8 residents per household, it is still to be confirmed as to the other 11 local authorities as each are dependent on their own demographic data. Figures are based on a calculation of net additional increase in the local population as a result of new development, as well as the declining size in the average household, and so the average occupancy rate used for credit calculations differing from the figure of 2.4 residents per household that is applied by Natural England in its nutrient calculator currently. This figure is based on the national average household assumption that all residents would be new to the area, even though Natural England has accepted that some people would move locally and would therefore not result in any additional nutrient impact within the defined catchment.

How will the credit bank system work?

Applications for credits will be open once a Quarter, with the first batch released at 9am on 31 March 2023. Guidance on what to include in the application will be released on 27 March via the gov.uk website in order for applicants to prepare the necessary information and calculations.

Initially, there will be 400 credits available in each batch with any that are not claimed rolling over to the next batch. Natural England is confident that more credits will be unlocked if the revenue is returned quickly to enable it to invest in more sites and make more credits available.

The process of applying will be online via the gov.uk website. If an application is successful, a 10% deposit will be immediately payable. Natural England will then issue a certificate that can be submitted with a planning application. The certificate will have a 36-week expiration date from being issued; Natural England believe that this will stop credit banking. Should planning permission not be granted after 36 weeks then the credits will be returned to the ‘credit bank’. However, it is expected that there may be some flex in this should there be any undue delays that are out of the applicant’s control, such as a deferred planning committee. Should planning permission be granted, then the balance of the payment for the credits will be due within 12 weeks of determination. The full certificate will then be issued which can be used to discharge any pre-occupancy conditions relating to nutrient neutrality.

It has been confirmed that the deposit will be refundable should the application get refused, however it is uncertain if this will happen if the certificate expires.

The credits will be allocated on a first come, first served basis through the application process. Whilst this will inevitably lead to some inconsistency it was determined that it was crucial to keep the process simple and this was the best approach to balance with fairness.

Applications will be divided into major (over 50 dwellings) and minor (fewer than 50 dwellings) applications (albeit the credits will be issued based on the size of the site rather than the applicant). In order to assist SME builders, the credits will be allocated over a 40:60 split, meaning there will be 160 credits available for major applications and 240 credits available for minor applications in the first batch. Any credits allocated for minor applications that are not allocated can be transferred for use by major applications. Natural England estimate that the first batch of credits for major applications will cover approximately 3 large developments (over 50 dwellings) across the Tees catchment.

Subsequent batches will be released every three months as follows:

Batch 2 – 30 June 2023
Batch 3 – 30 September 2023
Batch 4 – 8 January 2024

Natural England confirmed that the price per credit would be £1,825. Using the occupancy rate of 0.8 that is to be applied by Darlington Council it is estimated by Natural England that an average of 1.14 credits will be required for each dwelling. It therefore estimates that the cost per dwelling will be around £2,100 (1.27% of the average house price in Darlington).

As it stands, the credit calculator does not anticipate the upgrading of water treatment works in 2030 as the LURB has not yet received royal assent. However, as soon as this takes place, the calculator will need to be updated to take this into consideration.

What does this mean for current and future applications?

Whilst this is a positive step towards achieving a solution for nutrient neutrality, it will create some uncertainty for developers as to the realistic timescales in which credits can be obtained via the nutrient credit bank. Applications are only open once a Quarter and the first come first served approach means that the majority of applications will miss out initially.

Natural England has chosen not to prioritise applications that have already been submitted and are ready to be determined (following a resolution on nutrient credits). This may hold up housing that can come forward for delivery now. Instead, they have taken the approach they have in order to offer a ‘fair’ opportunity for all applications.

There is also still uncertainty about applications that only need to mitigate for part of the site, where on-site mitigation can be provided for some of the site. For example, if a site of over 50 units applies for credits through Natural England it would be considered as a major application (where the demand for credits is greatest). However, on-site mitigation may negate the need for a portion of the site, leaving fewer than 50 units to be mitigated for through the credit bank. Although the application would only be requesting credits for less than 50 dwellings, the scale of the development would still be considered under a major application. Natural England suggest they would consider this on a case-by-case basis.

Natural England is keen for this initiative to be successful and is encouraging a high uptake in using its credit bank in order to unlock more revenue to further increase the supply of credits (thus lowering the demand and competitiveness). In time and as more land is unlocked, this will create stability and Natural England claim that their £30m investment has the potential to generate £80m which will be used to improve the offering. However, until this stability is established, and the backlog of applications starts to clear, it is likely that there will be an extremely high demand for an inadequate supply of credits.

Lichfields will be continuing to closely monitor the situation with nutrient neutrality and would be more than happy to assist with credit applications once the new credit bank has launched for the Tees catchment. Please get in touch if you have any queries or need any assistance with calculations or any advice on projects that may be caught up in this process.

Under Review: Considering the Government’s Consultation on Environmental Outcomes Reports

Gayle Black & Nicki Mableson 23 Mar 2023

The Environment Act 2021 set a clear commitment to clean up the country’s air, restore natural habitats, increase biodiversity and halt the decline in species by 2030. St Patrick’s Day delivered a milestone moment in this journey with the publication of a long awaited consultation on the Government’s proposals for replacing the process of Environmental Impact Assessment and Strategic Environmental Assessment. The consultation – which runs to 9 June 2023 - seeks to provide more detail on the suggested creation of ‘Environmental Outcome Reports’ which are referenced in the Levelling Up and Regeneration Bill (‘LURB’) as the proposed new domestic framework for environmental assessment post Brexit. The paper sets out a vision for:-

“…assessment to be more effective as a tool for managing the effects of development on the natural environment, supporting better, faster and greener delivery of the infrastructure and development we need.”

So does the paper achieve its aim of clarifying its proposed approach? To an extent – yes – and we welcome the wide ranging questions upon which the consultation seeks a response and the clear intent to engage with the industry over the coming weeks and months. However, there is a lot to digest and consider and to that end we summarise some of the highlights below. Key will be ensuring that, in bringing forward changes, the proposals do actually retain the very real value of the existing assessment system which ensures environmental considerations are at the heart of bringing forward the largest developments in this country. In other words, let’s make sure we’re not throwing the baby out with the bathwater.

We’ve summarised below some of the main proposals which we, along with doubtless the rest of the industry, will be reviewing over the coming weeks.

Setting outcomes

The consultation establishes more on what the Government proposes regarding environmental ‘outcomes’ which would be ‘high level’, established in secondary legislation and subject to parliamentary scrutiny and public consultation. The consultation explains it is intended that outcomes would be measurable and designed by environmental experts who have experience and knowledge of sectors. An organisation will be assigned to monitor the overall progress of a specific outcome and they will be reviewed on a regular basis to ensure relevancy.

The LURB places a duty on the Secretary of State to ensure that an outcomes-based approach does not reduce the overall level of environmental protection provided by existing environmental law. The Secretary of State can also consider other relevant material when setting outcomes, such as the Clean Air Strategy.

Based on the Environment Act 2021, outcomes would be backed up by a number of indicators which can be used to measure how a development contributes to the delivery of each relevant outcome. Indicators will be data sets based on underlying technical work and analysis, such as physical surveys and population counts, and will measure the expected change resulting from a development against the baseline condition. The consultation importantly recognises that for some outcomes a more qualitative assessment may be required. This sounds very similar to the current approach and one would hope that this could help assessors get up to speed with the new system quickly.

Guiding principles for outcomes

The consultation proposes a list of topics (focused on the elements of the Government’s Environmental Improvement Plan) which could be reflected as outcomes, as well as referencing the potential to consider how EORs could achieve health related outcomes. The list proposed will be familiar to those involved in environmental assessment already and includes biodiversity, air quality, landscape and seascape, geodiversity, soil and sediment, noise and vibration, water, waste, cultural heritage and archaeology. The consultation notes that further consideration is being given to how the outcomes-based approach can best support efforts to adapt to the effects of climate change.

The consultation suggests that there will be an attempt to try to avoid duplication between policy and assessment.

It is proposed that different environmental assessment regimes can develop their own tailored approach to assessment. For assessments within the Town and Country Planning and Nationally Significant Infrastructure regimes it is suggested that the approach could be to assess against all relevant outcomes; but to adopt a proportionate approach with only limited review where outcomes are not or are less relevant to a particular site.

Reporting on outcomes

The consultation proposes that the core component of the EOR is drastically shorter and easy to navigate for consultees. A suggested structure of an EOR within the planning regime notes it could include:-

An introduction which cross refers to the project description provided in a separate planning statement;
A short and high level summary of the reasonable alternatives and the mitigation hierarchy considered;
An assessment of the contribution of the project towards achieving an outcome, including residual effects identified through technical work, current baseline data, commentary on levels of uncertainty, proposed mitigation and monitoring; and
A summary of the cumulative effects of the project on the outcomes.

It is suggested that the technical analysis would be provided in separate and standalone reports rather than ‘buried in appendices’.

The consultation reinforces the Government’s commitment to seeking digitisation of planning services and identifies proposals to provide better access to all to data secured through the environmental assessment process.

Need for outcomes reporting

The consultation identifies that the screening process would be strengthened to minimise ambiguity; noting that determining when assessment is required carries the highest risk of legal challenge in the current regime. It is proposed to establish regulations which will ‘narrow the scope for discussion’ when borderline cases are reviewed which may or may not require assessment. A further review will take place on how this ‘narrowing’ may be best expressed. However the consultation suggests the distance to a sensitive receptor or the presence of a defined impact pathway could be used to screen, which, it considers, would place “protecting sensitive sites and species at the heart of all screening activity”, with the size of the project as the “secondary consideration”.

Strengthening Approach to Mitigation and Monitoring

The consultation records that “ensuring that all steps are taken to avoid damage and mitigate the impact of development is central to these reforms” and aims to do this by setting the ‘mitigation hierarchy’ of avoidance, mitigation and compensation directly into legislation for the first time. This could give more ‘bite’ to the current practice of seeking to embed mitigation during the design development stage. It is suggested that EORs will need to report how adverse impacts on the environment have been avoided during the design stages.

In an attempt to address ineffective mitigation, the consultation proposes an ‘adaptive management’ approach which allows mitigation to be adjusted following implementation where monitoring shows that progress towards an environmental outcome is not as expected. The consultation asks for comments on the challenges in implementation of this approach and it is easy to see how this is likely to generate considerable interest from the development industry.

The consultation explains that Government will be given powers to ensure any mitigation measures proposed will be monitored to ensure they are delivering the level of environmental protection envisaged in the EOR. Where expected outcomes are not met, remediation would be pursued and enforced.

Reporting against performance

The consultation concludes on the topic of reporting against performance, explaining that public authorities will be required to report on performance against specified environmental outcomes, helping to build a country wide picture on the effectiveness of environmental assessment.

Next steps

Over the coming weeks we’ll be speaking with our clients and co-consultants to gather their ideas on how the reforms might revolutionise the process of environmental assessment and we’ll take a deeper look into the key issues raised by each of the Government’s questions. If you’d like to discuss the consultation and its potential implications with us, please contact a member of our EIA team.

Planning matters

How the 2011 Fukushima disaster continues to affect Berkshire