Planning matters

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:-

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.  

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.

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.

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:-

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.

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”.

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.

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.

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.